The Personal Website of Mark W. Dawson

Slander and Libel in America

Introduction

In the 21st century, we have entered into the era of social media and 24-hour news cycles. We also have government elected politicians and appointed officials utilizing social media and journalism to make assertions and allegations throughout the day and every day of the year. Assertions and allegations that often lack veracity as well as evidence.

In America, we all have the freedom of speech to make these assertions and allegations. However, that freedom is narrowly constricted, with one of the constrictions being slander and libel. We do not constrain speech beforehand, but we do allow lawsuits for slander and libel afterward. The following are the most serious problems of Slander and Libel in America today.

In Government

Comity (A state or atmosphere of harmony or mutual civility and respect) is sorely lacking in today's political process. The well of the House and the Senate, and committee hearings, have often been utilized for our elected representatives to express themselves on a variety of topics and issues. While doing so, they are legally protected from charges of slander and libel. This should be so, as it is necessary to have a free and open discussion of topics and issues in regard to the welfare of the people of the United States. Lately, however, many of these remarks have degenerated into charges of sexism, intolerant, xenophobia, homophobia, Islamophobia, racism, and bigotry. Comity has been for the purposes of electioneering and to gain political advantage. This poison's the atmosphere of the legislative process and makes it more difficult for legislators to work together to achieve legislation that is of benefit to all Americans. This needs to end to achieve a more peaceful and just society.

We have also seen an increase in the slandering of political opponents or executive nominees. Allegations of sexual impropriety, financial irregularities, associations with other people or organizations, etc., have been utilized to demonize, denigrate, or disparage a nominee as outlined in my other Article, "Demonize, Denigrate, Disparage (The Three D's)". This is usually done for political purposes and not to determine the qualification or fitness of a political opponent or the nominee to serve. These allegations should not be taken lightly but should also not be made public without credible, verifiable, or substantiated evidence of wrongdoing. To do otherwise is to slander a political opponent or nominee, slander in which the political opponent or nominee stands to lose their reputation, employment, wealth, and even family and friends based on false allegations. To do so otherwise will discourage qualified persons from running for office, or nominees from accepting a nomination, or qualified persons from serving in the government. All of this causes serious harm to the proper functioning of government and our society.

The more recent infamous examples of this were the confirmation hearings for Supreme Court Justice Kavanaugh. The want of veraciousness and the lack of evidence of the charges made against him was breathtaking in its audacity, as well as injurious to the body politic, as I explained in my Article, "The Rule of Law in Non-Judicial Proceedings". Former President Trump was also daily faced with assertions and allegations that were slanderous and libelous by politicians, journalists, and social media. The Steele Dossier, the Russian Collusion Delusion, the two Impeachments of President Trump, as well as the constant barrage of false assertions and allegations by members of Congress were also injurious to the body politic, as I also explained in the aforementioned Article on, "The Rule of Law in Non-Judicial Proceedings".

The remarks of former Senate majority leader Harry Reid regarding the presidential candidacy of Mitt Romney are another example. Sen. Reed stood in the well of the Senate and charged Mitt Romney with not paying his income taxes based on "vague" and "nebulous" comments he had heard from unidentified sources. He was protected from charges of slander and libel being lodged by Mitt Romney by the rules of the Senate. But this slander and libel are what he had indeed done. Without any basis for his charges, he should have been censored and removed from his leadership position, as this is not acceptable behavior for the leader of a free and just people.

In these examples, and other examples too numerous to mention in this article, the purpose was not to uncover the truth but to slander and libel an opponent for the purposes of political power and electioneering. If these assertions and allegations were not protected by Congressional exclusion, then this speech would be considered Slander or Libel.

Rules of comity need to be developed and enforced for all comments that occur in Congress. Remarks that include unfounded pejoratives should be subject to censure. And the defense of ‘in my opinion’ or ‘it has been said’ is an insufficient defense against slanderous and libelous statements. Anyone who engages in these remarks should be censured, and perhaps their right to make remarks should be suspended for an appropriate period of time as a result of violating rules of comity. In severe cases, if the person who is making these remarks is in a position of leadership, they should be removed from their leadership position, as this is not the behavior expected of leaders of a free and just people.

Of course, creating and enforcing rules of comity will be difficult to accomplish. But being difficult to accomplish is not an excuse not to try to accomplish it. After all, the most important things to be done are often the most difficult things to accomplish.

In Journalism

As I have written in my Article, "Modern Journalism", journalism has also morphed into Slander and Libel. If a journalist says or writes about a person, without having evidence to the facts or veracity of what was said or written, or has not done their due diligence to confirm the facts, then they should be sued for slander or libel. The publisher of the journalist report may also be sued if they did not do their due diligence in confirming the veracity of the report.

I am well aware of the current actual malice standard for a public official or public figure to sue for libel a journalist or publisher from the "New York Times Co. v. Sullivan" Supreme Court decision of 1964.

"New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was a landmark United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be libel; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press. The actual malice standard requires that the plaintiff in a defamation case, if that person is a public official or public figure, prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such claims by public figures rarely prevail."
- from the Wikipedia article on this subject.

The last sentence of this description (the high burden of proof required is such that lawsuits rarely prevail) is the 21st-century journalistic problem. Too often, modern journalism in a rush to report has not done their due diligence on their reporting or reports on reports from other journalistic outlets that have not done their due diligence. They often caveat their reports with statements such as if true, or not independently verified, or we cannot confirm, etc. Thus, the report is repeated, even if untrue, and forms a lasting impression on the viewers or readers that no retraction or correction can undo.

There is also the 21st phenomena of many websites that have appeared that claim to be news reporting but are primarily rumor mills filled with unsubstantiated reports. These websites hide behind the ‘New York Times Co. v. Sullivan’ Supreme Court decision of 1964 to insulate themselves from slander or libel lawsuits.

The question would then be ‘What constitutes due diligence in journalism?’ This can be a legally nebulous standard that needs to be solidified by law and legal rulings. However, I believe that legislators can provide general guidelines on due diligence in the legislation that could then be interpreted by the courts. It would also be adjudicated during the individual trials of slander and libel by the judge and jury, and It will eventually work itself out through court rulings and become settled law that journalists and publishers can utilize in their reporting.

This situation needs to be corrected to assure a more just and civil society. Thus, I believe Congress must rewrite the slander and libel laws to accommodate the realities of the 21st century. These new laws will and should be challenged up to the Supreme Court. This will allow the Supreme Court to review the "New York Times Co. v. Sullivan" Supreme Court decision of 1964, and to assure that the new laws are constitutional and protect the freedoms and liberties of all Americans.

In Social Media

As I have written in my Article, "Who Needs Government Suppression When You Have Big Tech Suppression?", "Social Media" has become a major outlet for people to express their thoughts and ideas. Sites such as Facebook, YouTube, and Twitter are regularly visited by tens of millions of people daily. Many people share their ideas and opinions by reading or listening to other people on these sites. While this has provided many benefits to the consumer, there has been a downside to this era.  This downside has been the posting or reporting baseless information on individuals regardless of the facts or evidence. This has resulted in emotional distress, loss of reputation, deprivation of educational opportunities, impingement of career advancement, possible verbal or physical assaults, and negative financial impacts on an individual. This has often been done by means of bullying or intimidation, suppression of free speech rights, and to disparage, denigrate, or demonize an individual they may disagree with or dislike. It is much more egregious than a vicious rumor mill, as it is posted for the entire world to see or hear for perhaps forever. A retraction or correction often does not reach the same audience who read or heard the original posting or reporting and usually does not alleviate the damage caused to the affected person.

The objective encouragement of violence (physical assaults on people or persons or the destruction of property) or to endanger public safety (such as shouting fire in a public arena) on social media should be prohibited. But these must be objective speech and not subjective speech. Objective speech being the direct incitement of violence or endangerment. Subjective speech is when someone claims that the speech would trigger others to commit violence or endangerment. Subjective speech is Free Speech in that subjective is in the eye of the beholder. What one would consider hate speech may not be construed as hate speech by another. As this speech determination cannot be objective, it is and should be, considered Free Speech.

Many social media platforms would respond that they are only forums and cannot control what is written or said. I agree, but I am not suggesting that they control what is written or said. I would only require that when someone has written or said something that results in a lawsuit for slander or libel that they help identify the alleged defendant of the lawsuit, as they may be the only party that can accomplish this identification. If they try to withhold the defendant’s information, then they are assisting in perpetuating the slander or libel. In this, they should not be allowed to do and, therefore, they should be considered as a party to the slander or libel.

Unfortunately, many social media sites are applying subjective criteria for banning speech. And usually, this ban is based on opinions expressed that are contrary to what the website supports. As these websites are private companies, they are free to choose what they will or will not allow. However, these websites claim that they are public forums and, therefore, not subject to slander and libel laws. I believe that this is a disingenuous claim when they are filtering subjective speech. At this point, they are becoming more of a public publisher exercising editorial content rather than a public forum in which all are free to express their opinion. As a publisher, they should then be subject to slander and libel laws.

This situation must be addressed as it not only harms the person targeted but also leads to an uncivil society. The intense polarization and partisanship that we see today are often fueled by this baseless posting and/or reporting on social media. The law, so far, has not been able to assist the aggrieved party because the slander and libel laws were written and evolved in a different environment than social media in the 21st century.

If you say or write anything about another person on social media that you know not to be true, or have no evidence of its truth, then you have committed slander or libel, and you may be sued for such by the aggrieved party. The social media provider must provide the real name and other information to identify the person being sued. If the social media provider does not provide this information, then it is an accessory to the slander or libel and may be sued as a contributing party to the slander or libel.

If a social media site wishes to be considered as a forum, then it may only ban the objective encouragement of violence or speech or objectively endangering public safety. Otherwise, they should be considered to be a publisher rather than a forum and subject to all the laws regarding publishing. All subjective speech and political or social commentary must be allowed for a social media forum. And they should be required by law to provide the real name and other information to identify the person being sued for slander or libel.

Conclusion

Slander and Libel in America, as I have addressed in this article, needs to be redefined for the realities of the 21st century. As such, I would propose that we change the rules of comity and the laws on slander and libel to accommodate the realities of 21st-century governance, journalism, and social media. I would do so in a manner that applied the following criteria:

• If a Congressperson engages in slander or libel, they should be censured and removed from positions of leadership in Congress.
• If a journalist says or writes about a person without having evidence to the facts or veracity of what was said or written nor has not done their due diligence to confirm the facts, then they may be sued for slander or libel. The publisher of the journalist report may also be sued for Slander or Libel if they did not do their due diligence in confirming the veracity of the reporting.
• If you say or write anything about another person on social media that you know not to be true, or have no evidence of its truth, then you have committed slander or libel, and you may be sued for such by the aggrieved party. The social media provider must provide the real name and other information to identify the person being sued. If the social media provider does not provide this information, then it is an accessory to the slander or libel and may be sued as a contributing party to the slander or libel.
• If a social media site wishes to be considered as a forum, then it may only ban the objective encouragement of violence or objectively endangering public safety. Otherwise, they should be considered as a publisher rather than a forum and subject to all the laws regarding publishing. All subjective speech and political or social commentary must be allowed in a social media forum.

Without these changes, we cannot be "A Civil Society", nor can we reduce the bitter partisanship in today’s America.