Speech and the Courts – Some Views

Towards developing an understanding about the role of the First Amendment in relation to the practice of free speech, in the United States, the proceedings of the Supreme Court of the United States (SCOTUS) may serve as a primary form of reference – such as in cases where the court has articulated a legal position about the First Amendment.

For the interest of locating these cases of the SCOTUS: The National Constitution Center has provided an index of SCOTUS cases having a bearing on the free speech clause of the First Amendment. If studying the proceedings of court cases in general, Court Listener – an initiative of the Free Law Project – may serve as a helpful database.

Considering the general category of SCOUTS cases having a legal bearing on the First Amendment, there are cases where an action of defamation or libel was alleged, and in which the defendant was operating in a journalistic role in the event to which the plaintiff has lodged some form of legal complaint. The case, New York Times Company v. Sullivan (1964) might serve as a primary example of a defamation lawsuit against an agency of the press.

In the opinion by Justice William Brennan in the case, there is an explanation about the dangers of a too-broad legal interpretation of defamation or libel:

“A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions – and to do so on pain of libel judgments virtually unlimited in amount – leads to . . . ‘self-censorship.’ Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.”

– Justice William Brennan, 376 U.S. 254 (1964)

Considered together with the evidence of an emergent trend of private interests in effect weaponizing the court system for prosecution of disfavored speech – a trend described at depth, in an article by Lili Levi – it may seem reasonable that the First Amendment should be upheld in the court, as a protection for free speech.

If there may be a form of legal craft by which a lawsuit could be strategically drafted against a purported defamation – such as in Sullivan, where specific items in the case were created, for instance, to prevent the case from being removed to a federal jurisdiction, here citing an analysis by Ottley, Lewis, and Ottley for DePaul Law Journal, 1984 -to a perspective outside of the legal system, this may seem like it must represent, ethically, a sort of “Dark Art.” Unfortunately, the money now being directed into defamation suits might seem likely to attract some would-be practitioners of such a form of ethical occultism.

Even with protections for speech being enacted at the highest level of the court system in the US, defamation suits can still serve in a retaliatory role towards disfavored speech, by imposing a burden of litigation procedures and legal costs to be borne by the defendant. Strategic Lawsuits Against Public Participation, or SLAPP suits, can bear an economic and social impact on defendants, even when the case is not finally decided to the favor of the plaintiff.

The study by Levi has highlighted, for instance, the celebratory gesture by Frank VanderSloot, after his failed defamation suit against Mother Jones magazine. To an effect, VanderSloot then turned his loss in court into a “PR win,” in the creation of a proverbial war chest for funding of lawsuits in attacks against “Liberal Media.” If there was a means to enact an anti-SLAPP measures at the federal level of courts in the US, it might provide some mitigating factor against such actions of moneyed interests in effect using the court system as an institutional tool against disfavored speech.

In an article at the First Amendment Encyclopedia, the etymology of the SLAPP suit is traced to a 1989 study at the University of Denver’s Political Litigation Project, published jointly in an article by George W. Ping and an article by Penelope Canan in the Pace Environmental Law Review. Ping characterizes the nature of the SLAPP suit as a suit “filed against non-governmental individuals and groups for having communicated their views to a government body or official on an issue of some public interest.” (4) In this context, the potential impacts of SLAPP suits might not be limited to the formal agencies of the press.

While individual states have developed anti-SLAPP measures – some, to an effect of the plaintiff incurring the defendant’s legal fees, pursuant of a disfavoring judgement in the case – but even for cases tried in these states, the potential may still exist for the defendants to incur a prohibitive legal expense while the case is adjudicated. Furthermore, if some states may not have enacted SLAPP measures, no doubt this too could be used in more of the “Dark Arts” of strategic legal craft, such as to enact lawsuits in any specific jurisdiction where defendants may not have as many legal protections.

Considering the news from the front, in this context, it may seem like a dark time for freedom of expression. Then again, to recall Foucault’s parrhesia and his lectures at Berkeley, perhaps it may seem that public speech would not be worth pursuing if it was not in such a time as this.

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