Shut Up or Pay Up

Why the government can't sue for libel.

Freedom of speech is the most fundamental American right.  If something is not quite right with the government - and when isn't it? - there's no hope of a change if you can't at least point the problem out.  Americans frequently complain, with good reason, that their elected representatives do not listen to what they say, or care about the issues they care about; but at least they can try to make their voices heard.

One of the fundamental differences between the Free World and the Communist bloc was the existence and allowance of dissent on the one side, and the guarantee of a one-way ticket to Siberia for objectors on the other.  But now we are beginning to see an unholy alliance forming between libel law and a desire to make unpleasant people be quiet.

There are a lot of ways to silence somebody other than killing them, and they can be almost as effective.  The American colonies were confronted with such a case in the famous trial of John Peter Zenger.  Mr. Zenger, a New York printer, published a newspaper that criticized William Cosby, the  Governor of New York.

Gov. Cosby ordered Zenger arrested and charged with publishing "seditious libels."  Wisely, Zenger hired Andrew Hamilton, the uncle of founder Alexander Hamilton, as his attorney.  Hamilton based his defense on proving that the allegations published against the Governor... were in fact true.  The jury found this argument convincing, and Zenger was freed.

In the process, freedoms of speech, of the press, and particularly of political criticism were firmly embedded into American political culture.

There must certainly be limits to free speech.  It cannot be acceptable to falsely shout "Fire!" in a crowded theater; innocent people are very likely to be severely injured as a result.  For similar reasons, free speech does not protect people who directly call for violence against others; we have gotten away from enforcing this, to our hurt.

Private individuals do have a recourse against others who are spreading false accusations against them: they can place a charge of libel in civil court.  But following Zenger, any charge of libel can be totally defended against by demonstrating that the "libel" was, in fact, the truth.

In addition, the more public a figure is, the less the court will be willing to allow them to sue somebody else for libel, because it is almost impossible to prove.  If I say, "The Clintons are constantly lying," how would it be practical for a court to try to figure out whether I was libeling them?  I could certainly provide any number of instances in which they made statements contrary to fact, just as you can with any public figure.

Only if I published something that was flat-out nonsense -- "Hillary is an alien from Mars!" -- would a libel suit be practical.  In that particular case, it would be pointless - since nobody believes it anyway, and a libel must be believable to receive damages.

In practical terms, this arrangement has worked pretty well for several hundred years.  You can say what you want to against the government, and it can't easily smack you for it.  You can criticize a person, and an ordinary person can come after you for libel, but if they are a public figure, it's almost never effective for them to sue you.

The strength of the government compared to any individual citizen is so overpowering, that it has been barred -- in most states, specifically by law -- from suing individuals for libel.  The amount of harm that any one individual could do to the government by saying lies about it is far too small to amount to much, in comparison with how easy it is for the government to destroy an individual's life, if nothing else then by running up legal defense fees.

This isn't stopping the government from trying, and it's making good progress these days.  In Texas, a blogger disagreed with the conduct of local school-board officials at the Galveston Independent School District, and posted criticism on a website.  The school district sent a letter demanding removal of the comments, and threatening a libel suit.

Now, Texas law is very clear on the subject: no government entity can sue for libel against any individual.  This was just reiterated in 2001 when another school district sued another angry blogger, and was roundly slapped down by the court.

Not to worry!  This time, the school district is not bringing the suit - oh no, that would be wrong.  No, the suit is being brought by members of the school board as individuals, suing the bloggers for slamming them in the performance of their official duties.

Sounds all nice and legal, doesn't it?  One little detail: the lawyer's bills are being paid, not by the school board members, but by the school district.

So we have the full power of the government's countless millions of dollars being used to shut up somebody the Powers That Be don't want to hear.  Admittedly, it's a lot nicer than throwing him in a prison cell - but it's certainly not free speech.

It does not matter whether the allegations of the blogger are true, false, or fantastical.  The First Amendment gives us the right to petition for redress of grievances - real or imagined.  And for sure, the last thing we need is for the government, or any government official, making the decision of what is or is not a "legitimate" grievance.

It's clearly oppression when government thugs burst into your house, and go on a destructive rampage, as happens so often to dissenters in other countries.  Is it that much less bad when, instead, the government simply assesses you a penalty so large that you have to sell your house to pay the bill?  Either way, you wind up homeless.

The meaning of the First Amendment is clear: Government has no business infringing on anyone's free speech, and most particularly not on criticism of the government itself, unless there is a clear call to violence in the speech.  The further away we get from that simple and straightforward principle, the shakier our freedoms become.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Politics.
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