How Defamation Suits Are Used to Stifle Free Speech

Posted on: June 9, 2021 at 11:25:55 CT

https://mises.org/wire/how-defamation-suits-are-used-stifle-free-speech

06/07/2021
Ryan McMaken

The average American can be forgiven for assuming that he or she can freely criticize the government and government personnel without fear of being sued by the government for libel or slander. This is indeed true most of the time. But it doesn't mean that government agents with hurt feelings won't sometimes try suing private citizens who have the temerity to criticize how government bureaucrats do their jobs. Such was the case earlier this spring when Louisville Metro Police officer Cory Evans filed a lawsuit against the "DUI Guy"—an attorney named Larry Forman who has a YouTube channel—for defamation after Forman accused Evans of planting evidence.

As Louisville’s WDRB reports:

"Forman posted body camera footage to his YouTube channel from a 2018 incident where LMPD Officer Cory Evans searched a man's vehicle following a suspected DUI. The video depicts officer Evans and another unidentified officer searching the vehicle for alcohol. Evans looks in the center console without finding anything, but the video jumps forward to the view of the other officer, who opens the console and finds a bottle of liquor minutes later."

While I don’t agree with Forman when he concludes, “The video speaks for itself,” Forman’s conclusion is nonetheless quite plausible. In other words, the body cam video footage makes it easy to see how Forman could sincerely believe that Evans did indeed plant the evidence. That is, Forman may have simply been stating what he believed to be the truth.

Now, Evans’s attorney claims the accusation “has hurt the reputation of the LMPD officer” and the suit is seeking damages.

Let’s hope Evans loses, and loses big.

Defamation as a Means to Silence Critics

The problem of a police officer suing a community member for an accusation of abuse helps illustrate one of the central problems with defamation lawsuits: they can be used by powerful people to silence critics.

In the United States, we are fortunate that it is quite difficult to win a defamation lawsuit. Generally speaking, in American courts, plaintiffs claiming damages from defamation must prove actual harm as well as intent to harm. The plaintiff must also prove the defamatory comments are false.

The difficulty of winning a defamation suit under such circumstances helps discourage countless defamation lawsuits. Thank goodness.

Alas, in other parts of the world, this is not the case, and we find many cases of government agents suing or prosecuting citizens for defamation. We even find wealthy and powerful private citizens suing critics, even when those critics are apparently stating what they believe to be facts.

The potential for abusing defamation law helps illustrate, yet again, the wisdom of deferring to “freedom of speech” as a dominating legal principle, and as a philosophy behind the US government’s First Amendment. The presumption should be overwhelmingly in favor of the freedom to speak freely, as efforts to limit speech in the name of protecting reputations presents many opportunities for the abuse of government power.

In all times and places, of course, agents of the regime prefer to silence their critics if they think they can get away with it. Historically, regimes have employed many strategies, such as blasphemy laws, or have simply outlawed criticism. But, as The Economist has reported,

"All these approaches attract international criticism. So some governments turn instead to defamation laws. Defamation is recognised almost everywhere as grounds for a civil claim, in which subjects of wanton and damaging falsehoods can demand financial compensation. But when defamation is a criminal offence, governments can go beyond fining critics who have caused demonstrable harm, and imprison them simply for speaking. Though several countries have recently decriminalised defamation, many more still prosecute it zealously. And even where it can no longer lead to jail, charges can stifle criticism if courts award vast damages."

Fortunately, in the United States, where defamation are suits are generally difficult, it is especially difficult for government personnel or government agencies to sue for defamation.

This has been true for many decades, and this tendency toward skepticism of government-initiated suits was greatly strengthened in the American courts in 1964 with the Sullivan ruling, in which the US Supreme Court concluded,

"For good reason, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”

In the UK, on the other hand, protections against defamation suits have been far weaker, even in regard to suits by government agencies. Only in recent decades, for example, has the UK turned toward heavily and explicitly restricting government suits against critics.

Use by Private Parties to Intimidate Critics

Invoking the government's courts to cover "damages" can be used in the private sector to silence one's opponents as well.

In the United Kingdom, where defamation laws are far more extensive than in the United States, we can find cases of defamation suits used to gain commercial and political advantage.

For example, when a plastic surgeon expressed doubts over the efficacy of a “breast-enhancement” cream, the cream’s manufacturers threatened the surgeon with legal action.

In another case, Saudi businessman Khalid bin Mahfouz sued a researcher who publicly concluded that Mahfouz had given money to al-Qaeda.

Such lawsuits would be quickly dismissed in the United States, but in the UK, matters are different. As NPR has reported:

"Crooks and brigands from around the world come [to the UK] launder their reputations, where they couldn't get exculpation in either their home country or indeed in the United States of America," says Mark Stephens, a London lawyer who often represents media companies in these cases…. In American courts, the burden of proof rests with the person who brings a claim of libel. In British courts, the author or journalist has the burden of proof, and typically loses. "So you've got the rich and powerful shutting down and chilling speech which is critical of them," says Stephens."

Of course, the fact that it’s very hard to win defamation lawsuits in the US doesn’t mean no one ever threatens them. Donald Trump, for example, is notorious for threatening defamation suits against critics. This dates back to well before his years as an elected official or presidential candidate. In 1984, for example, Trump sued architecture columnist Paul Gapp for making fun of Trump’s plan to build a two hundred–story skyscraper in southern Manhattan. Trump claimed Gapp’s remarks caused Trump $500 million in damages.

Trump has tried many similar suits, including a suit against a writer who said Trump wasn’t really a billionaire in 2006.

Trump sued one of his own Trump University students in 2010 over the student’s criticism of the school’s business practices.1

Thanks to the US’s laissez-faire attitude toward defamation, these cases were dismissed relatively quickly, although not without first causing his victims many sleepless nights and legal fees.

One can only hope that the lawsuit brought by Cory Evans of the Louisville Metropolitan Police Department receives the contempt that it deserves from the courts.

After all, government agents and agencies already exercise far more power over their fellow citizens than is the case for average people. The last thing we need is for these agents of the regime to be able to threaten their critics with lawsuits for the act of merely saying things.

Police officers and other government employees who don’t like being subject to public criticism can always resign their positions and become ordinary private taxpaying citizens.


----------
1. Makaeff v. Trump University, LLC, 715 F.3d 254, 260 (9th Cir. 2013).