Last week I argued that the legal outlook for free speech in America remains bright: the Supreme Court's defense of speech is consistent and robust. But the cultural outlook remains grim. Free speech, as a value, is under cultural assault — and feckless, politicized, and unlikely-to-be-effective legal assault — from across the ideological spectrum. Case in point: conservatives suing over mean, unfair, or unprincipled characterizations of their positions.
The latest culprit is Liberty Counsel, a group that litigates in pursuit of what it identifies as Christian values. Liberty Counsel has sued GuideStar, a database of charities, over GuideStar's controversial adoption of the Southern Poverty Law Center's "hate group" designation of entities including Liberty Counsel, which GuideStar later retracted. Liberty Counsel's complaint — which you can read here — is simply vexatious and unethical. It is — to abandon my pretense of decorum for a moment — a thoroughly contemptible and un-American piece of shit, and the lawyers who filed it deserve scorn. Liberty Counsel has filed a frivolous, censorious lawsuit against Guidestar in a cynical and craven attempt to avoid the more well-funded and ready-to-litigate PLC.
The complaint, filed in federal court in Virginia, accuses Guidestar of a violation of the Lanham Act — that is, it accuses Guidestar of false advertising based on Guidestar offering its opinion that Liberty Counsel is a hate group. It also accuses Guidestar of defamation and of interfering with its prospective economic advantage. These frivolous theories boil down to one idea: you're not allowed to repeat the SPLC's negative opinion of us.
There are many reasons to criticize the modern SPLC,1 which has sadly fallen from a group that once fought Klansmen and Nazis to protect rights down to the level of a shrill, doctrinaire, orthodox-leftist flailing denouncer of miscellaneous petty thoughtcrime. It is no longer to be trusted or taken seriously. If you want your money to support people protecting the powerless from violent bigotry rather than funding the sophomoric assembly of tendentious enemies lists, you should donate elsewhere.
But the SPLC's conduct is core, classic political speech. Ranting political generalizations about other people and groups and parties is exactly what the First Amendment protects. The SPLC's classification of a dizzying array of entities as "hate groups" may be unfair, unprincipled, immature, and even immoral. But it's also opinion absolutely protected by the First Amendment. Only provable statements of fact can be defamatory. It's certainly possible that the SPLC could make a false and defamatory statement of fact about a group in the course of classifying it as a "hate group" — for instance, by falsely attributing a statement to the group, or falsely claiming the group participated in some specific act. But that's not what's at issue in Liberty Counsel's cowardly-indirect attack on the SPLC. Their complaint says the defamation is the "hate group" classification. "Hate" and "hate group" are not provable statements of fact. They're opinion. You may think the opinion is stupid and without basis, but that doesn't magically turn it into a fact. You may think that having such an opinion expressed about you is very harmful, but that doesn't turn it into a fact either. "Hate group" occupies a place in the American lexicon with "SJW" and "cuck" and "fake news" and "far left" and "extremist" and "death party" and "party of death" and "libtard" and "wingnut" and anything else you'll see people shout at each other on Twitter. "Hate" and "hate group" aren't factually provable, because they're based on opinion. The opinion that being against gay marriage or affirmative action or generous immigration makes you a "hate group" may be stupid, but it's inescapably an opinion.
Were this not true, American political discourse would be cramped, chilled, and constantly hazardous. Want to start a list of professors you think are too liberal? Better get a lawyer first if your opinion classifying them can be defamation. Want to give letter grades to politicians based on their voting records? Better have deep pockets if your argumentative interpretation of their actions is subject to litigation. Want to make lists of politicians as "liberal" or "conservative"? You may think that's safe — but if opinion-based classifications are fair game for litigation, then it's not. Want to engage in political hyperbole and elbow-throwing rhetoric? See you in court.
Liberty Counsel knows this. These are not stupid lawyers. These are unethical lawyers, abandoning core American civic virtues to indulge in politics by other means. Liberty Counsel is part of the "do it to them because they did it to us" movement — the belief that, because some liberals someplace supported restrictions on free speech, it's acceptable to abuse the system to go after the free speech rights of these liberals here.
They aren't alone. Take Maajid Nawaz. SPLC was roundly criticized — reasonably — for calling Nawaz, a Muslim, an "anti-Muslim extremist." Nawaz has now announced — to the fawning approval of the loathsome Bill Maher — that he's crowdfunding a lawsuit against SPLC for that characterization. His site reveals just how broadly he wants to police political speech he doesn't like through litigation:
Legal action will, ideally, create a precedent, and provide a warning to those who think they can throw around damning labels like "Islamaphobe" "racist" and "Nazi" without any evidence and simply get away with it.
If nothing else, perhaps Nawaz's broad policy of censorship of hurtful opinions will win him support amongst Islamic extremists. He should target cartoons next. But someone needs to tell Nawaz that if he sues in speech-unfriendly United Kingdom courts, any judgment he secures will be worthless against the America-based SPLC. Under the SPEECH Act, foreign defamation judgments are not enforceable in America unless they are secured using America's speech-protective laws.
If the SPLC told factual lies about Nawaz — for instance, by claiming he said things he didn't — then that's potentially defamatory. But calling him an "anti-Muslim extremist" simply means "he's a guy who, in our narrow ideology-addled opinion, holds views that are unacceptable." That may be stupid, but it's not defamatory. The remedy for it is more speech, calling out the SPLC as hacks — and indeed, condemnation of the SPLC about its comments on Nawaz have been widespread and bipartisan. It's the same with Liberty Counsel. Guidestar dropped the SPLC "hate group" classifications in response to criticism. In its press release about the lawsuit, Liberty Counsel said that GuideStar "has lost all credibility." That's a very odd admission by a party seeking to prove that Guidestar's words hurt it, but it's also a spark of honesty in an otherwise dishonest campaign of political litigation: Guidestar offered an opinion, critics responded, and Guidestar suffered reputational consequences for its actions. That's how free speech is supposed to work.
I express no opinion in this post about whether Liberty Counsel's policy positions make it a "hate group" — though the SPLC saying it certainly is not a reason to believe it, and Guidestar showed questionable judgment in adopting the SPLC's term. But I do believe that Liberty Counsel's conduct in filing this case demonstrates that it is a foe of core American values and ought to be shunned on that basis.
However secure the First Amendment is under current Supreme Court precedent, there's a cultural war over free expression in America. People who pick the side of censorship and seek to undermine free speech rights are not worthy of your support or respect.
- Please join me in sympathy for the wonderful and principled Student Press Law Center, which is now the target of a lot of the Southern Poverty Law Center's bad press. ▲
Last 5 posts by Ken White
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