The unregulated "Free Market of Ideas."

For a different take on internet activity and libel, go to Rod Dreher on Internet & Libel on National Review Online. Dreher uses Michael Rose's threat of litigation against his critic Father Rob Johansen as the peg for his dire warnings about inadvertently being cast as a defendant in a libel action. A few comments to provide context are in order. Several posts below I make the point that defamation suits are generally bad business propositions. That doesn't mean they don't happen. While I wouldn't generally take one outside of certain rare circumstances - solid business damages, not vaporous reputation damages, a clearly libellous statement, something that doesn't involve a public issue, a plaintiff without substantial skeletons in the closet - if someone wanted to pay me at an hourly rate, then those things are their problem. I have written a number of letters threatening defamation actions. I call such letters "brushback" letters, a term I get from baseball where where a pitcher tries to "brushback" a batter who is crowding the plate. These letters are commonly used where the salesperson of one business starts getting a trifle too rambunctious in casting aspersions on a competitor, or where a former employer is indulging in some hit-and-run bad-mouthing of a former employer. I send the letter, which outlines the law, to the culprit's superior. From there, the usual scenario is that the boss then looks at the letter, wonders why he's getting threatening letters from some attorney he doesn't know, spends a little bit of money talking to his own attorney, and then calls the subordinate in and advises said subordinate that he doesn't need to be involved in such nonsense and that his business will do very well, thank you, without having to incur gobs and gobs of legal fees defending against spurious lawsuits. Oddly, I get good results with this kind of letter for just that reason. The decisionmaker doesn't have a personal stake in the personality conflict, and tells everyone else to "tone it down."

It looks like this scenario has played itself out with the Rose-Johansen contratempts.

And that is a good thing. The core of business and public discourse should be on truth and professionalism.

On the other hand, unless Johansen was making very personal false statements about Rose, Rose's chance of anything but publicity would be very slight.

Also, its useful that everyone get some idea of the edges of defamatory speech. Several posts below I made the point that defamation requires a mistatement of fact. This is an oversimplification. Defamation requires a reasonable fact finder to conclude that the communication implied a provably false factual assertion. Opinions may contain such an implication. Here's a lengthy excerpt detailing some of the edges in this area:

The United States Supreme Court has "recognized constitutional limits on the type of speech which may be the subject of state defamation actions." (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 16, 110 S.Ct. at p. 2704, 111 L.Ed.2d at p. 16.) However, the high court has rejected constitutional protection for defamatory statements simply because they are categorized as opinion as opposed to fact because, inter alia, such a distinction ignores the fact that expressions of opinion may often imply an assertion of objective fact. Nonetheless, the Supreme Court has reaffirmed a line of cases that provide "protection for statements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual. [Citation.] This provides assurance that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added much to the discourse of our Nation." (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. at p. 2706, 111 L.Ed.2d at p. 19.)
Hence, characterizing a developer's negotiating position as "blackmail" was constitutionally protected when used by the Greenbelt News Review because "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable." (Greenbelt Coop. Pub. Assoc., Inc. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6.) Likewise, the title, "Lies, Damn Lies and Fund Advertisements," was held not to imply that a Fund lied. (Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 29 Cal.Rptr.2d 547.) Similarly, a campaign mailer charging the opposing candidate with "ripp[ing] off" the California taxpayer by maintaining a private law practice while on the public payroll was held "when taken in context with the other information contained in the mailer [to be] rhetorical hyperbole that is common in political debate," and not defamatory. (Beilenson v. Superior Court, supra, 44 Cal.App.4th at pp. 951-952, 52 Cal.Rptr.2d 357.) Finally, a "vague charge" that the plaintiff "entered into a corrupt relationship" with a councilman "was not a factual assertion of crime" but implied "moral criticism of objectives and methods, not the occurrence of bribery." (Okun v. Superior Court (1981) 29 Cal.3d 442, 459, 175 Cal.Rptr. 157, 629 P.2d 1369.) [FN12]


FN12. Although the Supreme Court in Okun distinguished between statements of fact and statements of opinion--a distinction now discredited--it also properly recognized that it was ultimately looking at whether a factual assertion had been made for purposes of assessing whether the publication was defamatory. (Okun v. Superior Court, supra, 29 Cal.3d at pp. 450, 459, 175 Cal.Rptr. 157, 629 P.2d 1369.)


"Whether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact---the dispositive question in a defamation action--is a question of law for the court. [Citations.]" In all cases, "[t]he dispositive question for the court is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. [Citation.]" (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724-725, 275 Cal.Rptr. 494; Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at p. 1500, 39 Cal.Rptr.2d 848.) "Courts must be cautious lest we inhibit vigorous public debate about ... public issues. If we err, it should be on the side of allowing free-flowing discussion of current events. We must allow plenty of 'breathing space' for such commentary." (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1193, 31 Cal.Rptr.2d 193.)

In this case, taken in context, Scherer's purported use of the words "thief" and "liar" in the course of a chance set argument with a political foe at a shopping center was the type of loose, figurative, or hyperbolic language that is constitutionally protected. (Morningstar, Inc. v. Superior Court, supra, 23 Cal.App.4th at p. 690, 29 Cal.Rptr.2d 547.) Specifically, in the context of a heated oral exchange at a shopping center in the midst of a hard-fought initiative contest, anyone who might have overheard Scherer call plaintiff a thief or a liar would have understood Scherer to be furious at, and critical of, plaintiff's position, but would not likely have thought that Scherer's supposed outburst was accusing plaintiff of a criminal past or of dishonesty in his business dealings. There is a difference between a false assertion in campaign literature that a person was arrested or has a criminal past and the assertion of invective in the midst of a heated confrontation over a political issue, given that the standard is whether a reasonable fact finder could conclude that the communication implied a provably false factual assertion. (Moyer v. Amador Valley J. Union High School Dist., supra, 225 Cal.App.3d at pp. 724-725, 275 Cal.Rptr. 494; Couch v. San Juan Unified School Dist., supra, 33 Cal.App.4th at p. 1500, 39 Cal.Rptr.2d 848.)

Rosenaur v. Scherer 88 Cal.App.4th 260, 279-280, 105 Cal.Rptr.2d 674,687 - 688 (Cal.App. 3 Dist.,2001)

However, no matter where the edges of legally permissible activity lie, it is always a good idea to keep in mind that even if name-calling is not actionable, it is also not very persuasive.