Litigation vs. Free Speech?

Wednesday, June 20, 2018

Over at Popehat, Ken White expresses grave concerns over the recent total, pre-litigation surrender of the Southern Poverty Law Center to a Moslem activist who had threatened to sue them over defamation, for including him on a list of anti-Moslem extremists:

Image of Maajid Nawaz via Wikipedia
[T]hough I celebrate an apology for wrongdoing, I can't celebrate a surrender at swordpoint that encourages censorious litigation. Bad opinions are, and ought to be -- must be -- absolutely protected. If the SPLC surrendered because we've got a broken judicial system that makes litigation ruinously expensive and fails to protect free speech, the result is bad, not good. The threatened lawsuit appears to be part of a trend of suing the SPLC for its opinions and characterizations. The settlement will embolden that trend. The trend will not stay confined to the SPLC -- that's not the way the law works. Especially in such bitterly divided times, suing over opinions is deeply censorious and corrosive of free speech. Nawaz -- who has himself been the target of attempted censorship -- should know that. [link in original, bold added]
White's difficulty is that, although the SPLC was being ridiculous, they looked like they were, in fact, engaging in protected speech. Furthermore there was nothing in the apology that came with the settlement to indicate that the SPLC had actually engaged in defamation (which is and should be illegal), rather than indulging opinion, as sophomoric as it might be. I recommend reading the whole thing.

-- CAV


Anonymous said...

Hi Gus,

Much as I appreciate Ken White and his opinions, I think that he is eliding the fact that government agencies such as the FBI have used material on 'hate groups' produced by the SPLC to the legal detriment of various groups of citizens. I think that this fact, and the that the SPLC promotes the fact of their use by gov't agencies as part of their fund-raising efforts, removes the antics from the realm of 'mere' free speech as protected 'opinion'. They are asserting certain 'facts'. The FBI etal are acting on these 'facts'. Individuals and associations have been unjustly targeted by gov't force because of SPLC assertions.

I don't like the fact that social media groups are also using SPLC lists in their 'policing' of their platforms. The fact is that they are private and can do as they please in this regard unless such classifications or their news releases about their actions cross the line into defamation. (I am silent on the question of whether such arbitrary actions are in fact a violation of their own terms of service.)

I have a choice whether to deal with the Social Media Leviathans. (As a matter of fact, I don't use Face or Twit and limit my use of Goog to their map app and an Android phone.) I don't have a choice about whether the FBI decides, based on 'information' promulgated by the SPLC, to ruin my life with an 'investigation'. As Ken White has been known to point out, 'The process IS the punishment'.

If the SPLC information is being used in such fashion, with their knowledge and consent - and since they have a 'partnership' with the FBI, one must assume that this is so - it removes their bad information from the realm of opinion and free speech and places it firmly in the category of defamation and tort.

c andrew

Gus Van Horn said...


I am not a lawyer, but you raise very good points. Either you are correct that "it removes their bad information from the realm of opinion and free speech and places it firmly in the category of defamation and tort," or something besides the court system is also wrong.