When ‘free speech’ is used to chill free speech
Recently, Here’s Gavin McInnes’ lawsuit against SPLC. (Read the filing here.) One of his attorneys, Ron Coleman, represented the Slants, a band, in a First Amendment suit that went all the way to the Supreme Court. Which is to say, Coleman is a serious lawyer, with serious credentials.
But that doesn’t mean I agree with this complaint.
Why?
Let’s start with facts and opinions.
If I say, “Irving Fenklebottom is a horrid person,” that’s an opinion. If I say, “Irving Fenklebottom has poor grooming habits and looks kind of sick,” that’s also an opinion. If I say, “Irving Fenklebottom gave me a loathsome venereal disease,” I’ve just stated a fact. If I say “Irving Fenklebottom looks like a serial killer,” that’s a hyperbolic opinion. If I say, “Irving Fenklebottom murdered someone last night,” that’s a statement of fact.
Although there are exceptions, American defamation law protects statements of opinion. Calling Irving Fenklebottom a horrid person, saying that he has poor grooming habits, or even saying that he looks like a serial killer or a disease victim is not
And then there’s libel per se. These are false statements — say, accusing someone of a crime, immoral acts, a crime the or the inability to perform in his or her business — that are so obviously harmful that malice need not be proved. (See https://dictionary.law.com/Default.aspx?selected=1154)
This, incidentally, is why I’m in real trouble if I say Mr. Fenklebottom committed a crime or has a loathsome disease.
Similarly, (as attorney Ken White pointed out to me in an email exchange), context counts. He writes, “If our local school board has a meeting to investigate a rumor that schoolteachers are members of the American Nazi Party. Someone says ‘Irving Fenkelbottom is a Nazi, I know it.’ Potentially defamatory” By contrast, Ken White said, if somebody argues on Political Twitter that Mr. Fenklebottom is a “total Nazi,” context and tone tells us it is “almost certainly” not defamatory, and neither is saying that Mr. Fenklebottom is a Nazi because of the blog posts he wrote.
So what does the much-maligned Irving Fenklebottom have to do with Gavin McInnes?
Well, answer me this. What, precisely, is a “hate group?” Bump around social media enough, and you’ll find plenty of disagreement. One person’s hate group is another person’s benign group of “Western chauvinists.” And if you poke through the right (or wrong) fora, you’ll find allegations that both the Southern Poverty Law Center and the Proud Boys qualify as hate groups.
In other words, calling somebody a “hate group” is a statement of opinion, and a reasonable person understands it as such. Non-actionable, right?
McInnes and his attorneys want to upset this law. We find the In paragraphs 212-220 of the complaint, McInnes’ attorneys argue that because SPLC acts like its “hate group” statements as fact, and because other people treat the “hate group” statements uncritically, the law should therefore treat them as fact, rather than opinion.
Wut?
Let’s tease out this out for a minute. I can see two possible doctrines arising from this. In the first doctrine, we would elevate accusations of “hate group” and “racist” virtually to the level of libel per se. In other words, these designations are so harmful that if they’re offered without proper supporting evidence, we don’t even need to prove malice, and we’re done.
In the second doctrine, we treat SPLC’s “hate group” designation as an actionable false statement of fact because SPLC is such a credible organization that its opinions have the weight of fact. Both of these doctrines are dangerous. The first doctrine moves the goalposts on defamation law to the point that relatively normal hyperbolic rhetoric is suddenly illegal. That will certainly enrich defamation attorneys, but it won’t do much to forward public discourse.
The second, nearly nonsensical doctrine (treat their opinions as allegations of fact because they act like they are fact) is even more insidious. If an organization develops a reputation for credibility, then offers a controversial opinion and faces liability for that opinion, then groups like the SPLC no longer have an incentive to develop credibility and might as well go straight to the screaming phase of politics.
And both of these doctrines will inevitably chill free speech.
Which brings us to the ultimate irony that runs through this lawsuit. Gavin McInnes values his right to spout whatever opinion he wants about immigration, Western civilization, non-Western civilization, whatever. And he values his right to do so hyperbolically. But he does not value other people’s right to comment on his speech. And he does not want to face the inevitable consequences that flow from holding unpopular opinions.
In other words, Gavin McInnes wants the SPLC to shut
That’s hypocritical and ultimately incompatible with the First Amendment, let alone American values of free speech.
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