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Notes -
Defamation Bear Trap
The legal field is filled with ad-hoc quirky legal doctrines. These are often spawned from a vexed judge somewhere thinking "that ain't right" and just making up a rule to avoid an outcome they find distasteful. This is how an exploding bottle of Coca-Cola transformed the field of product liability, or how courts made cops read from a cue card after they got tired of determining whether a confession was coerced, or even how an astronomy metaphor established a constitutional right to condoms. None of these doctrines are necessarily mandated by any black letter law; they're hand-wavy ideas that exist because they sort of made sense to someone in power.
I've dabbled in my fair share of hand-wavy ideas, for example when I argued that defendants have slash should have a constitutional right to lie (if you squint and read between the lines enough). Defamation law is not my legal wheelhouse but when I first heard about Bill Cosby being sued by his accusers solely for denying the rape allegations against him, I definitely had one of those "that ain't right" moments. My naive assumption was that a quirky legal doctrine already existed (weaved from stray fibers of the 5th and...whatever other amendment you have lying around) which allowed people to deny heinous accusations.
I was wrong and slightly right. Given how contentious the adversarial legal system can get, there is indeed the medieval-era legal doctrine of "Litigation Privilege" which creates a safe space bubble where lawyers and parties can talk shit about each other without worrying about a defamation lawsuit. The justification here is that while defamation is bad, discouraging a litigant's zeal in fighting their case is even worse. Like any other cool doctrine that grants common people absolute immunity from something, this one has limits requiring any potentially defamatory remarks to have an intimate nexus with imminent or ongoing litigation.
It's was an obvious argument for Trump to make when Jean Carroll sued him for defamation for calling her a liar after she called him a rapist (following?). A federal judge rejected Trump's arguments on the grounds that his statements were too far removed from the hallowed marble halls of a courthouse. Generally if you want this doctrine's protection, your safest bet is to keep your shit-talking in open court or at least on papers you file in court. While the ruling against Trump is legally sound according to precedent, this is another instance where I disagree based on policy grounds.
Though I'm a free speech maximalist, I nevertheless support the overall concept of defamation law. Avoiding legal liability in this realm is generally not that hard; just don't make shit up about someone or (even safer) don't talk about them period. But what happens when someone shines the spotlight on you by accusing you of odious behavior from decades prior?
Assuming the allegations are true but you deny them anyways, presumably the accuser would have suffered from the odious act much more than for being called a liar. If so, seeking redress for the original harmful act is the logical avenue for any remedies. The (false) denial is a sideshow, and denial is generally what everyone would expect anyways.
But assuming the allegations are false, what then? The natural inclination is also to deny, except you're in a legal bind. Any denial necessarily implies that the accuser is lying. So either you stay silent and suffer the consequences, or you try to defend yourself and risk getting dragged into court for impugning your accuser's reputation.
My inclination is that if you're accused of anything, you should be able to levy a full-throated denial without having to worry about a defamation lawsuit coming down the pipes. You didn't start this fight, your accuser did, and it's patently unfair to now also have to worry about collateral liability while simultaneously trying to defend your honor. Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest. That ain't right.
You need a third ingredient. If the accusation is false, what’s stopping the target from suing your ass first? The truth is an absolute defense against defamation. This incentive only arises when the accuser has enough evidence to protect against a lawsuit. That’s hardly out of thin air.
Only in some countries. For example in Japan you can be found guilty of defamation even if what you said is 100% demonstrably true. In some cases having it be true is even worse than lying as damages are calculated on harm done to someones reputation, and if people can independently verify that your speech is true is does more harm.
I tried to find a good article exploring the reasons/consequences of this but couldn't. Anyone have a link?
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I live here (Japan) and this is only one aspect of Japanese law that makes me uneasy. I even pause when leaving online restaurant reviews for this reason.
For me it was the police's ability to hold anyone in custody for up to 23 days without charges. I avoided police, and in the rare case I had to interact with them I was exceedingly deferential and polite.
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The most instructive scenario to consider here is how the Shitty Media Men litigation transpired. Suing people is a significant time commitment and money sink, especially for defamation. Out of the 70 men on that list, AFAIK only Stephen Elliott was dogged enough to pursue legal action. As nonsensical as some of the accusations against Elliott were ("unsolicited invitations to his apartment") he was "lucky" that his sexual habits were peculiar enough and his accusations specific enough that he could at least try to mount a credible rebuttal:
I grant that maybe some of the accusations on the list were true, but many were just vague and accordingly impossible to defend against. Lawsuits are also seen as antagonistic, and there is significant social pressure against resorting to that remedy. I gather that some men just found it easier to slink away than risk magnifying their pariah status within the gossip-friendly field of media. Elliott eventually "won" a settlement from the list's creator but who knows how much money each side bled out since the lawsuit dragged on for almost five years.
Actually suing someone is expensive but threatening to sue someone isn't expensive. It's expensive on the plaintiff's side too, and unless you're of enough means that an attorney can expect to actually collect on a decent size judgment, good luck even finding someone to take the case. Most of the people who find themselves the subjects of defamation suits where the defamatory remarks are mere denials of other potentially defamatory remarks have enough money that they could marshal some powerful attorneys who could nip the thing in the bud before it becomes a big deal. Trump could have easily afforded to have some biglaw attorney draft a letter explaining that the comments were defamatory and he's prepared to sue unless she's willing to make a public denial. If she balks, have a complaint drafted that will be filed if they don't start making progress in negotiations. After she finds out how much it's going to cost for the cheapest attorney in town to defend something like this she'll probably consider recanting.
That being said, I agree with you overall because having rich people threaten expensive lawsuits to fend off average people who say bad things about them is a pretty shitty way to do business, especially if the allegations are true. I'd much rather have a situation where mere denials aren't considered defamation, regardless of how far along we are in the chain of "who started it". Wealthy people have the option to threaten litigation to shut people up as it is, and I'd rather see some reform before they resort to actually doing it to fend off lawsuits.
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Okay, but that kind of wrecks the incentive to make up accusations whole-cloth. The more people—or the more prominent—you target, the higher chance that one of them is Peter Thiel.
I'm not sure what you mean by "that". The creator of the Shitty Media Men list did lose in this instance but this was a unique and unusual set of circumstances.
We already have “something like it,” and it’s the normal defamation torts. They already threaten would-be accusers with liability. Sure, following through is expensive and uncertain. But it clearly can happen—especially if the accused is rich, reputation-conscious, or has proof.
Expanding litigation privilege swings the balance too far. It gives the accused every incentive to smear the accuser’s reputation, regardless of the truth. That sort of speech should be kept to a court of law, where it is already protected.
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