The Consequences of Speech

The adage about sticks and stones may hold true on the playground, but as we've seen in a spate of recent lawsuits the part about names never hurting does not necessarily hold sway in the American judicial system.

Within the past few months there have been highly publicized defamation suits involving a Chicago landlord against one of its tenants who alleged mold in her apartment, a model against an anonymous poster who blogged that the model was a "skanky superstar." We saw a suit this summer filed by real estate mogul Donald Trump against an author who alleged that his personal wealth is not nearly as much as he claims, and competing lawsuits by former major leaguer Roger Clemens and his one-time trainer and friend Brian McNamee over Clemens' alleged use of steroids during his playing career. Clemens' and Trump's suits were dismissed.

The basic premise of defamation is that a statement, or published remark has hurt the reputation of the person who is the intended target. The immediate knee-jerk defense is that in America we have "freedom of speech."

To a degree it is true that we can say or write anything we want. However like everything. Freedom of speech is not absolute. Or as Justice Oliver Wendell Holmes once put it, "free speech would not protect a man falsely shouting fire in a theater." If the statement is harmful, it has been heard (and believed) it is untrue, and it can be shown to have caused real damage to the target's reputation, the speaker can be successfully sued.

The Supreme Court in a famous 1960's case New York Times vs. Sullivan added a prong when dealing with public figures or issues of public import. The court in 1964 said that the defemation must be one based on "malice." Malice in this case does not mean that a reporter actually had spite -- the layman's understanding of malice, but rather, it is in this case a term of art, meaning that the reporter had no regard for accurate reporting. In this manner, the malice is towards the truth, not the defamed party. The concept behind Times v Sullivan is that actual reporters need to be given leeway with respect to the First Amendment for fear that if the press are afraid to be sued for good-faith errors, which turn out to be defamatory, matters of public import will go unreported.

However over the years critics have argued that this distinction between reporters, and various categorizing of subjects is dubious. Non-professional media don't get the benefit of doubt of "bonafide" press. And statements involving allegations that your non-famous neighbor has a proclivity to take money to perform sexual favors are actionable without your neighbor proving actual malice, even if you had a well reasoned belief that all of her various male visitors parking next door in the middle of the night, were not simply visiting to check on her well-being.

With the upstart of new media, such as blogs (like this), tweets and postings on sites like Facebook and My Space. The game has shifted. Traditional press have tried to maintain the distniction between profession and private reporters. The press has argued that traditional media are subject to ethical rules and codes of conduct, and editorial and fact-checking standards that bloggers don't have. This is so, even when, as it so happens often blogs are the first to report on stories that are only later picked up in traditional press and where the traditional press has been shown from time to time to suffer from a lack of the standards they profess. Some argue that the distinction between a professional press and new media should not apply.

However the critics differ in the best way to resolve the distinction: Some argue that bloggers should get the same benefit of doubt as professional reporters. Others argue that professional reporters should not be treated with any more protection than any one else who writes.

Courts, to date have mainly upheld the distinction between professional reporters and non-professionals. For that reason, Liskula Cohen was successful in getting Google to name the author of the "skank" comment and Horizon Group Management was able to sue Amanda Bonnen over her tweet "Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay" which when at first posted was seen by less than 100 people.

Horizon's lawyer said the company is a "sue first, ask questions later kind of an organization." Bonnen's attorney responded that the Company is acting the bully in order to forestall others from asking legitimate questions. This lawsuit brings to life the exact fears that the Supreme Court expressed in requiring the malicious intent standard in Times vs. Sullivan.

Will the standard change? It will eventually have to. New media requires a new look at reporting, what exactly it means, and how to protect parties from untruthful and malicious smears. What the new standard will look like may not take shape for a decade or more. But until we know, there is one thing that anyone who blogs, tweets or posts should be aware of: While you have the right to say anything you want, it does not mean that you have the right to free from the consequences of what you say.