DEFAMATION AND FREE SPEECH
Updated: May 2, 2020
The Southern Poverty Law Center may be facing dozens of lawsuits related to its listing of various groups and companies as hate groups. These lists have been used by Amazon and others as a list of companies to avoid and therefore might be extremely damaging to someone who has been incorrectly listed.
This type of labeling and listing from the Southern Poverty Law Center is raising extremely interesting questions, and possibly lawsuits, in defamation law, an area of law I practice and regularly monitor.
In general, defamation is a rather simple matter. The devil is in the details and the defenses. Simply put, if a speaker publishes to a third party a statement of fact that is false and that false statement is harmful to the subject's reputation, it is a defamatory statement.
Now, as with any area of the law, that simple statement of what defamation is can unravel into dozens of pages. There are privileged statements to one's employer, there are exceptions to those privileges when malice is proven by clear and convincing evidence, etc.
The interesting arguments regarding the Southern Poverty Law Center are its assertions that its lists of hate groups are opinions, not facts. The argument that a given published statement is an opinion has been used by litigants as an attempt to defend against a defamation lawsuit because defamation requires that the published statement be a false assertion of fact; if it is an opinion, the speaker is nearly immune from suit.
For example, if Mr. X states to Mr. Y:
"Mr. Z raped 4 women 7 years ago, he was arrested and served 3 years in prison."
That is an assertion of fact. If it is false, ignoring other possible defenses for the sake of brevity, it is defamatory, technically defamation per se because it falsely states that Mr. Z has committed felonies involving moral turpitude.
Now, if Mr. X instead states to Mr. Y:
Mr. Z, in my opinion, raped 4 women 7 years ago, he was arrested and served 3 years in prison.
Again, assuming this is false, the inclusion of the phrase "in my opinion" does not actually change the assertions of fact.
Of course this is a simple example, real life examples are far more complex.
The definition of a fact is, quite simply, whether it can be proved true or false. Did Mr. Z commit a rape, get arrested, and serve 3 years in prison? That is provably true or false. This situation can be taken one step further, consider the statement:
Mr. Z is a bad person because he raped 4 women.
The portion of the quote, "Mr. Z is a bad person" is indeed an opinion; however, again assuming it is false and defamatory, the supporting statement of "because he raped 4 women" can be the subject of a defamation lawsuit. If the statement stopped at "Mr. Z is a bad person," that would be a completely protected statement of opinion because it is one's estimation or evaluation that cannot be objectively proved true or false.
As the Supreme Court stated, "[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas."
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).
Should the presently threatened lawsuits go forward against the Southern Poverty Law Center, I anticipate several extremely valuable written opinions will emerge and they will help guide defamation law into the future.