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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.
Every time you write about legal stuff I just feel more and more convinced that the rules are made up and the laws barely matter.
What is the point of a statute of limitations if it can be changed after the fact to include things previously protected by that statute?
What is the point of the trial related amendments if you can just have your reputation smeared and ruined by the media without anything vaguely resembling "due process"?
What problem are civil courts solving other than 'how to make lawyers rich'?
Plea deals destroying incentives to get your day in court. Prosecutors seemingly immune to any consequences of malpractice.
An old movie keeps coming up in my mind. It took me an hour of searching to find it based on my vague recollections. Interstate 60. There is a section of the movie where the main character (on a mythical road trip) takes a stop in a town called Morlaw. The entire town is comprised of lawyers that are constantly suing each other for everything (get it, Morlaw -> More Law). Any unlucky idiots that find their way to the town get caught up in the web of suing very quickly.
How does the protagonist escape? Do they make a compelling argument that this is insane? Nope, that doesn't convince any of the lawyers. They just see that as another reason to sue him.
The way the protagonist escapes is by making a call to a friend he met on the road. An ex-marketer that is dying and decides to go on a personal crusade against lying. This ex-marketer has a bomb vest strapped to him, and seems willing to use it. Yup, that's right, it takes literal terrorism to extricate the main character from a web of lawyers. The ex-marketer decides to stay around Morlaw to keep them in line.
Our legal system increasingly resembles a system of "might makes right" if you have enough powerful people on your side then the law can literally be what you want it to be. It doesn't feel like there is a legible system of rules where an underdog that is correct or in-the-right can beat the system. In the end someone might make the same realization that the ex-marketer makes. "Why play by your rules when I'm always going to lose? Why not bring violence to the table?"
The far left and the right basically agree at this point that the law is made up at this point. It’s just human interpretations of what words mean which can be manipulated into anything.
For something not culturally war. What about student athletes. One day they were limited. Next day popular opinion changed. No laws were passed.
https://www.forbes.com/sites/kristidosh/2021/06/21/what-does-supreme-court-decision-against-ncaa-mean-for-name-image-and-likeness/?sh=71bcd9bf500c
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