Schadenfreude Is Not A Free Speech Value
Let he or she who has not gloated at the misfortune of the wicked throw the first stone!
Not many of you should be throwing, because I'd wager that most of you, like me, secretly snicker when the awful are made to feel awful by circumstance.
But in the free speech arena, we can't afford to applaud the legal reversals suffered by assholes. We have to sigh, cowboy up, defend the loathsome from censorship, and question judgments and convictions they sustain.
Here are two examples.
The Joe Francis Jury Probably Couldn't Spell "Googleplex."
I previously named Girls Gone Wild founder Joe Francis as an example of someone I would not defend. It's not that I think he's not entitled to a legal defense. I have nothing against anyone who chooses to represent him. It's just that he's an example of someone I find so unutterably vile that my revulsion would interfere with my effectiveness as an advocate.
Now Joe Francis — who is himself no more than a fair-weather friend of free speech — has been hit with a $40 million judgment in a defamation suit by casino boss Steve Wynn. Francis apparently claimed that music producer Quincy Jones told him that Wynn talked about having Francis killed and buried in the desert. Jones testified that he never told Francis anything of the sort. This led the L.A. County jury to award Wynn $20 million in compensatory damages (which was $8 million more than Wynn ever asked for) and later $20 million in punitive damages.
Defamation judgments can be censorious in both a qualitative and quantitative manner. I don't find it even a little bit difficult to believe that Francis maliciously lied about Wynn. I do, however, find it difficult — if not impossible — to believe that Wynn sustained $20 million in damages. After all, (1) even Wynn wasn't asking for nearly that much, (2) it's hard to believe that anyone would take anything Francis said seriously enough to think less of anyone else as a result of it, (3) hasn't everyone fantasized about killing Joe Francis and dumping him someplace unpleasant, and therefore why would you think less about Wynn if he had mused about it, and (4) nothing in any of the coverage I've seen suggests that Wynn offered any evidence of actual hard damages (loss of business, etc.). Also, punitive damages pose due process concerns; this award seems uncoupled from either harm or Joe Francis' assets. This seems more like an effort by the jury to quantify, to the extremely limited ability of our primitive mathematics, the question "how much of a stomach-turning douchebag is Joe Francis?"
Ridiculously gigantic awards can punish and chill free speech. Imagine that I sued you for calling me a snarky, opinionated asshole who once kicked a dog. Imagine that the jury was instructed that the first parts were opinion and immune from suit but that the dog part might be defamation. Imagine that the jury awarded me $eleventy million because you accused me of kicking the dog. Yes, you have been deterred from making knowingly false or reckless statements of fact. But you've also been deterred from criticizing me at all, as has everyone else who hears about the verdict.
Free Joe Francis! Hopefully the judge or appellate court will reduce the award to something more rational. Then we can keep hating him unabated, and he will have a bit more money left, which with any luck he will use to render himself mute and incontinent through an accident involving expensive cars or designer drugs or bungee-jumping or something.
Andrew Shirvell: One Part Stalkerish, One Part Defamatory, Several Parts Just A Freakish Asshole
Weeks ago I noticed in passing the $4.5 million judgment awarded against Andrew Shirvell, the former Michigan Assistant Attorney General who became a bizarrely obsessed stalker and badmouther of University of Michigan student Chris Armstrong, nominally because Shirvell believed that Armstrong was using the student government of his alma mater to push some sort of gay-Nazi-orgy agenda on hapless and tender undergraduates.
As per usual with any case with a theme more complex that "teen mom stabs sex tot," the media coverage of the trial and verdict sucked. It made it impossible to determine what specific statements attributed to Shirvell led to findings of defamation.
So, naturally, I resorted to PACER.
PACER documents leave me convinced that (1) Shirvell is a scary-ass nut with Serious Issues, (2) Shirvell said some things which seem genuinely defamatory — that is false harmful statements of fact, and (3) Shirvell said many things that seem to me to be within the broad scope of protected statements of opinion rather than statements of fact.
If you are interested, you can check out Armstrong's complaint (which is attached to Shirvell's notice of removal to federal court). It complains about both statements of fact that are susceptible to defamation analysis (like claims that Armstrong had sex in a church and a playground) and statements of hyperbole or opinion (like "Defendant falsely and maliciously stated that Plaintiff is Satan's representative"). The jury form shows that the jury was handed a bewildering array of statements potentially classified as defamation, intentional infliction of emotional distress, or invasion of privacy through placing Armstrong in a false light. The list includes statements of fact that can be proved false, and apparently were (like allegations that Armstrong hosted an orgy in his dorm) to statements which seem to be opinion, hyperbole, or characterization that are very questionably listed (like statements that Armstrong "spit in the faces" (metaphorically) of minority students, or that "he's acting like a gay Nazi" and "the persecution of the believers will begin in earnest now").
This is disturbing. The evidence — for instance, evidence adduced in Armstrong's opposition to Shirvell's Motion for Summary Judgment — paints Shirvell as a stalker who would say anything to lash out at Armstrong. But when courts and juries conflate false statements of fact with hyperbole and opinion, however vile, the result is harmful not just to nutjobs like Shirvell, but to First Amendment jurisprudence. Just as the Francis jury seemed to throw up its hands and assign a number based on their entirely understandable visceral disgust at Francis, the Shirvell jury seemed to say "eh, close enough" in distinguishing actionable defamation from protected opinion.
I'm not sorry that Francis or Shirvell got hit with judgments. I am concerned, though, that they got hit with judgments that seem to be premised as much in anger as in principled application of the law.
Last 5 posts by Ken White
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