Sunday, May 13, 2007

Free Speech? We don't need no stinking Free Speech.

This is so typical of local governments. The Pomona City Attorney is threatening a blogger for a post on a matter of local interest. The post dared - dared! - to offer a theory about why the Pomona City Manager suddenly retired.

The theory might be true or it might be completely false, but it involves the government and that means that it is "political speech" and "Core political speech" "occupies the highest, most protected position" in the "rough hierarchy in the constitutional protection of speech." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992). Letters like that from Arnold M. Glassman-Alvarez, the City Attorney of Pomona, offend the First and Fourteenth Amendments to the United States Constitution because those kinds of government actions "will inevitably lead to self-censorship."

Eugene Volokh observes:

I can't speak to whether any of the blog posts did indeed libel City employees or officials. But I can say that the City Attorney has no legal basis for demanding (as opposed to requesting, by appeals to a sense of fairness or journalistic standards) that the blog stop publishing false information about the City -- under New York Times v. Sullivan (1964), there can be no lawsuit for libeling a government entity.

The NYT v. Sullivan Court stated that "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence," and it endorsed this tradition as being constitutionally mandated. So while I certainly think it's wrong to make knowingly or recklessly false statements about government entities, and while it may be libelous to make such statements about particular city employees or officials, it cannot be libelous even to say outright lies about the City of Pomona more broadly.


"This kind of thing is happening everywhere" Update:

Powerline posts on the Democratic National Committee's attempt to stifle free expression on the Fresno-based website Free Republic. Here is the demand letter from the DNC's attorney, which seeks to have Free Republic remove an offending post by one of its many, many commenters.

Scott at Powerline writes:

Under the First Amendment, as construed by the Supreme Court in New York Times v. Sullivan, citizens are protected from defamation claim by public figures so long as the statements in issue are lacking in "actual malice," i.e, knowledge of their falsehood or reckless disregard as to whether they are false or not.

Accordingly, our reader's Free Republic post based on the statements of Jim Quinn is constitutionally immune from a defamation claim. Whether Quinn and those who broadcast his program have such immunity is a different question, but the same constitutional protection applies to them. Professor and First Amendment expert Eugene Volokh coincidentally makes a closely related point based on the Sullivan case today.

"Actual malice" is a tough standard for public figures to overcome. That's why defamation claims by public figures have essentially disappeared since the Sullivan case. Under the Sullivan case, the First Amendment affords wide latitude for the discussion of public figures as well as issues of public concern.

Sandler's letter to Free Republic incorporates no element of "actual malice." It is couched in the traditional common law of defamation that the Supreme Court killed for public figures in the Sullivan case. Sandler's letter carries Governor Dean's denial of Quinn's assertions, but it does not even allege that Jim Quinn had knowledge of the statements' falsity or made them with reckless disregard of their truth or falsity.

We therefore associate ourselves with our reader's statements regarding Governor Dean and invite Mr. Sandler to sue us for defamation as he threatens to sue Free Republic. This is to put him and his client on notice, however, that we intend to seek our attorney's fees under federal law for the assertion of a frivolous claim if he does so.

It's sad at this late date that we need to be reminded that the First Amendment is intended to protect political speech and not just artists who dip Crucifixes into urine or a "chick band" of Country singers who want to curry favor with Europeans by slamming the President in Europe.

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