March 30, 2022:- The Appeals Court has ruled that two District Court judges should not have prohibited a woman from posting anything online about the lawyer she and her husband had hired.
According to the lawyer, the couple had made statements on Facebook “calling us thiefs [sic]” and criticizing the lawyer in emails that cc’d other people. On the strength of this, first one judge (in Leominster District Court) then another (in Worcester District Court) issued a harassment prevention order under G.L. c. 258E. As the name suggests, harassment prevention orders are supposed to prevent harassment, not to prevent criticism. Nevertheless, two separate judges employed the harassment-prevention law to ban constitutionally-protected speech.
The Leominster judge issued the order on June 25, 2021, and the Worcester judge extended it on July 9, 2021 for a period of one year. The orders banned the defendant — the lawyer’s former client — from uttering any statements about the lawyer via “Internet or social media posts.” More than 8 months later, on March 30, 2022, the Appeals Court vacated the gag order. The part of the decision titled Discussion begins with this clear statement:
There is no basis in the record on which a c. 258E order could lawfully have issued.
Then the Appeals Court points out that the lawyer did not claim that the ex-client ever uttered any threats, and that nothing in the lawyer’s complaint described conduct that could qualify as “harassment,” which the statute defines in this way:
(i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.
To run afoul of the statute, a person needs to engage in three or more acts. Those acts need to be willful and malicious. The person must intend the acts to cause fear, intimidation, abuse or damage to property. And each of the three acts must, in fact, cause fear, intimidation, abuse or damage to property.
The appellate courts have consistently construed this definition so that it does not (or, at least, should not) discourage people, still less prohibit them, from engaging in the sort of robust back-and-forth speech that is essential in a self-governing republic of free people. To put it another way, no appellate court in Massachusetts has ever held that criticism of a lawyer by a disgruntled former client constitutes harassment under chapter 258E, still less that the offending speech warranted a comprehensive year-long ban on the mere utterance of the lawyer’s name online.
On the bright side, the lawyer’s ex-client had the wherewithal to hire another lawyer to file a successful appeal. But it is truly galling that a resident of Massachusetts should have to take a case up to the Appeals Court in order to vindicate her right to speak freely. It is more than galling that a lawyer and two judges (all of whom took an oath to uphold the Constitution of the United States, which still includes the First Amendment) all considered it OK to quash free speech. After all, even today — in the Trudeau-pian era of ochlocracy, Big Tech/Big Pharma shut-uppery, and the categorization of “misleading narratives that undermine public trust in US government institutions” as terrorism — this area of Massachusetts law is absolutely clear. It has been particularly clear since 2016 when the Supreme Judicial Court explained (because it was, sadly, necessary to explain) that judges really should not ban political candidates from mentioning the names of their opponents at election time. For my post on that decision, click here (quick, before they ban it).
So, three cheers for the Appeals Court justices and no cheers at all for the District Court judges who issued the gag order in the first place.
August 4, 2021:- If you lie awake worrying that there are too few people incarcerated, too few criminal offenses on the statute books, and too much unregulated speech (in fact altogether too much unregulated human activity in general) rest easy. Help is at hand. The Massachusetts Legislature is considering a bill that would criminalize videos that make it look as if people are saying things that they did not really say.
It seems unlikely that the bill, H. 1755, sponsored by Representative Jay D. Livingstone, will become law, not this session anyway. It is a refile of H. 3366, which he filed in 2019. For reasons that I explain below, I hope this bill does not become law, not this session, not next session, not ever.
The clue is in the typo
Whoever drafted the bill apparently drew inspiration, and most of the text, from a federal bill titled the Malicious Deep Fake Prohibition Act of 2018 filed by United States Senator Bill Sasse (R – Nebraska). If you want to read Attorney Nina Iacono Brown’s critique in Slate of Senator Sasse’s bill and similar proposals, click here.
Copying another legislator’s bill is not a violation of the Copyright Act, of course (on which subject see below). In fact, they should have gone the whole hog and copied the title too. Because what did the drafters choose as a moniker for Representative Livingstone’s adaptation of Senator Sasse’s bill? They called it “An Act to protect against deep fakes used to facilitate torturous or criminal conduct.”
Aside from the irony-laden, Freudian-slippy typo (I am quite sure that they meant to write “tortious” not “torturous”) it’s just too much of a mouthful. But that problem is a small one compared with the bill’s potential impact on freedom of expression. It would hand the shut-uppers yet another tool with which to silence heterodox speakers.
Trust me, I’m from Big Tech
H. 1755 was on the agenda for the Joint Committee on the Judiciary on July 27, 2021. If you would like to watch the relevant part of the hearing, click here and scroll to 1:09:40. There you can see and hear testimony from Nick Gatz, manager of State Government Relations for Adobe, who states that the company is neutral on H.1755 and offers the Legislature its expertise “on the topic of content manipulation and online misinformation,” which is the sort of thing Adobe is against, I gather.
Adobe is so very much against content manipulation and online misinformation that it has established an entity called the Coalition for Content Provenance and Authenticity. If that name was approved by a focus group, I am quite sure that its members either: (a) had no familiarity with Orwell’s 1984; or (b) considered the book to have been not so much a cautionary tale as an instruction manual.
Coalition of the all too willing
The purpose of the Coalition for Content Provenance and Authenticity? To deploy technology that will help us — naïve saps that we are — sort the real-news wheat from the fake-news chaff, thereby obviating the need for legislation. Why should politicians bother to extend control over online speech with laws (laws that could conceivably be struck down by bothersome judges or repealed by the great unwashed) when Big Tech has an app for that? If the alternative to the Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct is the Coalition for Content Provenance and Authenticity, forgive me for not sighing with relief.
One of the more famous members of the coalition is Twitter, the company that (like Google’s YouTube) runs advertisements for the Chinese government, says the Columbia Journalism Review:
“According to a number of reports, the most recent ads push the message that protesters in Hong Kong are violent extremists and that state police are simply doing their best to keep the peace.”
Yes, Twitter takes money to promote the Chinese Communist Party line that pro-democracy protestors are violent extremists, a falsehood that does not count as “online misinformation” so far as Twitter is concerned, apparently.
Another coalition member is Microsoft, which, according to Business Insider, complies with China’s censorship laws. For example, earlier this year, when users in the United States tried to find images of Tank Man via Microsoft’s search engine, Bing, their searches yielded no results.
Readers may recall that Tank Man was the protestor who stood in front of Red Army tanks during the Tiananmen Square demonstrations. He was being a “violent extremist,” I suppose. But Bing’s omission was merely the result of “human error,” according to reports on the British Broadcasting Corporation (BBC).
“Beijing is known to require search engines operating in its jurisdiction to censor results, but those restrictions are rarely applied elsewhere.”
The most important word in that sentence is “rarely.” Fans of Gilbert and Sulivan’s H.M.S. Pinafore may be recalling the Captain’s lines, “What, never? Well, hardly ever.”
Coincidentally, the BBC is another member of the Coalition for Content Provenance and Authenticity. For readers unfamiliar with the BBC, it is Britain’s publicly-funded media organization that makes popular dramas, documentaries, and situation comedies and, once upon a time, used to be a trustworthy source of news, at least in comparison with, say, TASS or Pravda. It is also the organization that employed Martin Bashir, the reporter who secured a TV interview with Diana, Princess of Wales, by using faked bank statements that fueled the princess’s paranoid delusions that she was the victim of a conspiracy involving, inter alia, royal bodyguards; her husband and heir apparent to the Crown, Prince Charles; the Secret Intelligence Service; and GCHQ, Britain’s equivalent of the National Security Agency.
The BBC followed up on Bashir’s fakery with an equally fake internal inquiry and not only retained his services but gave him a promotion. For the report of the independent inquiry, click here.
In addition to Martin Bashir, the BBC employed Jimmy Savile who, during his lengthy broadcasting career, sexually assaulted approximately 72 people and raped several more, including an 8-year-old girl, crimes to which the BBC later admitted it had “turned a blind eye.”
So Twitter, Microsoft, and the BBC are now coalescing with other media corporations in order to protect us — poor, credulous, undiscerning, gullible us — against content manipulation and online misinformation. What, as they say, could possibly go wrong.
Federal question
During the hearing, the House chair of the committee suggested that deepfakes might be better dealt with via a new federal law. This brought to mind a current federal law, namely section 506 (c) of the Copyright Act, which makes it a crime to place on any work a false copyright notice:
“Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false… shall be fined not more than $2,500.”
This provision came to mind for two reasons. First, it was only last year that the Supreme Court of the United States issued its decision in Georgia, et al v. Public.Resource.Org, Inc., on the subject of copyright in legislative works (the public edicts doctrine). The court reiterated the well-established point that legislators cannot claim copyright in the works they create in the course of their official duties.
That’s why Senator Ben Sasse has no grounds to go after State Representative Livingstone. And it is why the Massachusetts Legislature cannot claim copyright in the documents that it publishes. If it did so, e.g. by fraudulently posting a false copyright notice on its website, it would be violating section 506 (c) of the Copyright Act.
And that was the second reason that the provision came to mind as I watched the hearing, because right there on the screen, at the bottom of the page, appeared the following words:
I wonder if that qualifies as “online misinformation.”
From tort to crime
If we cannot safely place total trust in Twitter, Microsoft, the BBC, and the Coalition for Content Provenance and Authenticity as a whole (and we can’t), would we be any better off with Rep. Livingstone’s Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct? No, and here’s why.
The proposed law would make it a crime to distribute a video in order to “facilitate criminal or tortious conduct” if the video was “created or altered in a manner that [it] would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
The word “facilitate” is pretty clear, I suppose, and the term “criminal conduct” is easy enough to grasp. It covers things like assault and battery, and fraudulently placing a false copyright notice in violation of section 506 (c) of the Copyright Act.
But what qualifies as tortious conduct? We have torts aplenty in Massachusetts, but here are two that tend to come up in the context of online spats: defamation and the intentional infliction of emotional distress. To me, these are the two torts that seem likely to provide a pretext for political prosecutions under H. 1755, allowing Massachusetts politicians to use the courts to silence their opponents. Do such things really happen here? For just one example, see my post titled “Free speech wins (four years after judge bans candidate from mentioning opponent’s name.”
It can be difficult for public figures such as politicians to shut up their detractors with defamation lawsuits. They have to prove “actual malice,” i.e. that the speaker made a false statement knowing that it was false or with reckless disregard of whether it was false or not.
Easier, then, if you are an elected tribune of the people, to seek a civil harassment-prevention order, as did the politician in the case I discuss in the aforementioned post. Even easier, perhaps, to bring a private criminal complaint under the proposed Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct or, better still, get your friend the prosecutor to ask a grand jury to issue an indictment.
If H. 1755 becomes law and you share a deepfake with the intent to cause emotional distress to, say, Senator Suehappy Thinskin you won’t be looking at your screen for a while; you’ll be looking at two and a half years in the slammer.
To safely forward the video of the esteemed Senator without fear of criminal prosecution, you would need to know — prior to sharing it — that it was not “created or altered in a manner that would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
How could you be sure? Perhaps you could look for a certificate of authenticity issued by the Coalition for Content Provenance and Authenticity. But the Coalition (i.e. Twitter, Microsoft, the BBC, etc.) might not issue certificates to videos that criticize the powerful. It might routinely withhold certificates from people who say things that the powerful do not like.
But the absence of a certificate would not necessarily mean that the video was deepfake. So you could roll the dice, share the video, and hope that you don’t get a call from the offended hack’s lawyer or from law enforcement.
Even if the video is authentic, you might worry that people with friends in high places might be able to persuade law enforcement — and even a judge and jury — that it is not. Readers may have noticed that when somebody says something true, but embarrassing, about a powerful person, the powerful person first denies it and then attacks the somebody who said it, often with the eager help of the online mob. Even if the truth of the statement eventually becomes apparent, by that point the speaker’s life has been turned upside down.
Yes, H. 1755 says that “no person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.” But when do you, the speaker, find out whether your activity was protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States? When a judge says so, i.e. long after you’ve been interrogated and prosecuted.
Those risks, I suspect, would make you think twice about forwarding the video of Senator Suehappy Thinskin saying or doing something idiotic. We call this the chilling effect.
But shouldn’t there be laws against using deepfakes to defame people or cause them emotional distress? Yes, and we already have them, e.g. the torts called defamation and the intentional infliction of emotional distress.
If you still think we need more criminal offenses for prosecutors to threaten people with, check out @ACrimeADay on Twitter. Spoiler alert: There are a lot.
Conclusion
Back in 2019, the Massachusetts bill to ban deepfakes had two cosponsors, but this time Representative Livingstone is going it alone. The bill is losing support rather than gaining it. You may think that I should take heart from this trend, but I do not. Why? Because of the difference between bad ideas and nuclear waste.
At some point, with the passage of time, nuclear waste stops being dangerous. Not so with bad ideas. You cannot summon forth the ideas that H. 1755 embodies, bottle them, bury them in a lead-lined underground vault, and wait for them to disintegrate into harmless nothingness. No, they remain in the atmosphere, floating freely like wraiths, sometimes for decades, until they suddenly make themselves manifest as emergency bills or outside sections in the State budget.
That is why I am no more relieved at the bill’s feeble prospects this session than I am about entrusting the task of identifying deepfakes to the likes of Twitter, Microsoft, and the BBC.
P.S. For the full text of Representative Jay Livingstone’s bill, H. 1755, scroll down below the image.
Photo by Kindel Media from Pexels
SECTION 1. Chapter 266 of the General Laws is hereby amended by inserting after section 37E the following section:-
Section 37E 1/2. (a)As used in this section, the following words shall have the following meaning unless the context clearly requires otherwise:
“Audiovisual record,” any audio or visual media in an electronic format and includes any photograph, motion-picture film, video recording, electronic image, or sound recording.
“Deep fake”, an audiovisual record created or altered in a manner that the record would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.
(b) Whoever (1), creates, with the intent to distribute, a deep fake and with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct, or (2) distributes an audiovisual record with actual knowledge that the audiovisual record is a deep fake and with the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct shall be guilty of the crime of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.
No person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.
September 28, 2020:- Another small victory for freedom of expression in Massachusetts, again from a Federal judge rather than the State courts. The key point? Housing providers should not have to promote organizations that seek to strip away their rights.
In the case of Baptiste v. Kenneally, the U.S. District Court did not grant the plaintiffs an injunction against the Commonwealth’s eviction moratorium, but did find that the regulations issued under it impermissibly burden free speech.
In April, the Massachusetts Legislature enacted Chapter 65 (the eviction moratorium) which prohibits landlords from sending notices to quit, but allows them to send missed-payment notices stating how much the tenants owe.
Then the executive branch issued emergency regulations (with no notice-and-comment period) that tell housing providers what to say in these missed-payment notices, including a link to certain “resources.” The “resources” include Massachusetts Housing Partnership, which in turn links to the advocacy group City Life/Vida Urbana, the taxpayer-funded nonprofit corporation* that campaigns for measures that are (I will put this mildly) not entirely consistent with the constitutionally-guaranteed right to possess and enjoy private property, e.g.
“We will fight for legislation to protect and expand rights for all working-class renters and homeowners, including RENT CONTROL, RIGHT TO COUNSEL, and an EVICTION SEALING ACT. We’ll actively support efforts to make corporate developers pay for these initiatives through a TRANSFER FEE on the sale of luxury development” (all caps in original).
That quote is from the page on the corporation’s website titled Our Work. All those measures are diametrically opposed to the interests of housing providers, and members of the statewide organization MassLandlords have consistently voiced their opposition to them.
On September 25, Judge Mark L. Wolf held that the State government regulations infringe the speech rights guaranteed by the First Amendment.
[T]he court finds that plaintiffs are likely to prevail on their claim that the second paragraph of 400 C.M.R. §5.03(2) unconstitutionally compels speech by requiring plaintiffs to include in any notice of rent arrearage addresses of non-governmental websites that, in turn, refer tenants to tenant advocacy groups, including City Life/Vida Urbana, with interests adverse to plaintiffs’.
The judge went on:
“[I]t is a fact that organizations like City Life/Vida Urbana provide legal services to tenants who want to resist being evicted, they also engage in other activities including, among other things, advocating for legislation that restricts landlords’ rights to evict, and litigating against them.”
The judge explained that State government should not compel landlords to endorse and promote these activities, and that compelled speech of this sort would not survive intermediate scrutiny let alone strict scrutiny.
This part of the decision represents a welcome victory for free speech in the Federal District Court. What a shame the State-level courts in Massachusetts so rarely evince a similar regard for that right.
___
*The corporation’s legal name is Urban Revival, Inc. and according to its Form 990 (2017) its mission/significant activities are “racial/ethnic harmony through affordable housing and economic development,” which is more succinct than (and different in tone from) the mission statement on its website:
“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”
P.S. A note about my choice of image, which illustrates the idea of the mailed fist in the velvet glove. When I write about compelled speech, I like to offer a reminder about who it is, exactly, that is doing the compelling. If ever you disobey a law, you risk an encounter with agents of the only organization in society that (as Max Weber pointed out) claims a monopoly on the legitimate use of violence, namely the government. If you refuse to do what the government tells you to do, or you refuse to speak the words that it demands that you utter, eventually you will come into contact with the government’s agents, people who wear uniforms, carry weapons, and have the power to alter your condition from free to un-free and from alive to dead.
February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day by demonstrating its love for free speech.
The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.
In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.
The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”
Today’s decision represents a very welcome victory for freedom of speech.
October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.
The latest state regulation aimed at controlling the funding of political speech means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.
Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.
Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.
Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?
Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.
As an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.
What degree of protection? The case I discuss below might surprise you. But first some background:
The First Amendment covers many forms of expression – such as parody, protest, and pornography – but not statements that are false and damaging. Intentionally saying something untruthful and damaging about another person orally (slander) or in permanent form (libel) constitutes defamation.
Most of us understand that there is a permanent, uncomfortable tension between free speech and freedom from harmful speech. We also appreciate that conversing in the public sphere is a civic virtue, even when the conversation turns critical or crude. But we are not always sure about where, exactly, speech slips across the boundary from civil to slanderous, from lawful to libelous. What is the precise location of that line? It shifts, according to the status of the plaintiff and the state of mind of the speaker.
One factor is whether the plaintiff is a public figure as opposed to an ordinary citizen who has not actively sought the spotlight. Public figures suing for defamation carry a heavy burden. They have to prove that the speaker knew that the statements were false or showed reckless disregard for their truth or falsity, a standard known as “actual malice.” Hyperbole and harsh opinions are endemic to meaningful discussion, and in this self-governing republic we prefer our debate heated, not chilled. If public figures do not like the heat they know where to find the kitchen door.
Using lawsuits to go after political opponents for what they have said deters people from participating in public discussion. Strategic lawsuits against public participation (the source of the acronym SLAPP) tend to chill speech so, to prevent such lawsuits, state legislatures across the country have enacted anti-SLAPP statutes. Among those jurisdictions is the District of Columbia, whose anti-SLAPP law requires a court to dismiss any claim that arises from “an act in furtherance of the right of advocacy on issues of public interest” unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” D.C. Code §16-5502.
Together, the “actual malice” requirement and anti-SLAPP statutes place significant hurdles in the path of public figures seeking to silence their critics. So if a public figure – a famous scientist, for example, who had joined the public debate around a controversial policy – came to my office after suffering harsh criticism impugning his integrity and competence and asked whether to sue for defamation, I would probably demur.
Those are the exact terms – including the phrase “planting crimes on others” – various critics have employed to describe Richard Lindzen, the atmospheric physicist who taught at MIT until his retirement last year. As a scientist, albeit retired, Richard Lindzen might wonder whether some of those statements were actionable.
But Richard Lindzen is not the scientist who is suing for defamation. That scientist is Michael E. Mann.
As readers may recall, back in 2009 somebody misappropriated emails from the University of East Anglia’s Climate Research Unit occasioning a scandal of sorts. One of the emails mentioned Michael Mann and referred to one aspect of his work, rather ambiguously, as a “trick.” Professor Mann’s employer, Penn State University, investigated Mann (or, at least, interviewed him) and cleared him of three out of four charges. But a later investigation by the National Science Foundation criticized Penn State for “not adequately review[ing] the allegation” against Mann and for failing to interview critics of his work.
In 2012, writing in the conservative National Review Online, Mark Steyn quoted Rand Simberg’s previously published comment about Professor Mann, comparing Penn State’s investigation of Mann to its investigation of Jerry Sandusky:
“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”
Mann sued Simberg, Steyn, and the two entities that published their statements. The defendants filed a motion to dismiss under the D.C. anti-SLAPP statute. The judge denied the motion. That threshold decision means that the case will go forward, with all parties incurring significant legal fees and the defendants facing the risk of a large damages award. Alternatively, the defendants may choose to pay Professor Mann to settle the matter short of trial.
According to the judge, Mann’s defamation claim is “likely to succeed on the merits.” In stating that Mann had “molested and tortured data” Simberg and Steyn did more than express an opinion through rhetorical hyperbole, said the judge. Rather, they made “statements based on provably false facts.” Therefore, the judge reasoned, Professor Mann would likely prevail at trial, meaning the court should deny the writers’ and publishers’ anti-SLAPP motion. The decision is troubling: not because falsely accusing scientists of deceptive practices is right, but because muzzling contrarians is wrong.
When applied to a distinguished scientist and his data, the words “molest” and “torture” may strike some readers as vulgar and others as amusing. Either way, the words are disparaging. Of course, any reasonable reader would understand that Simberg and Steyn were using a metaphor to convey an opinion. Data are not sentient beings, after all. They are capable of being tortured and molested only figuratively, not literally. But clearly the writers meant their statements to denigrate Professor Mann by implying that he had distorted the facts to suit his agenda, an allegation similar to the one Richard Lindzen’s critics throw about.
Does that mean the government, in its role as guarantor of Michael Mann’s reputational interests, should effectively ban them? If Richard Lindzen sued, should the government silence his critics too?
Perhaps climate science is the sole area of study where we already know all there is to know, where we have incontrovertible proof about not only what has already happened but also what will happen. Perhaps, but probably not.
From what I have read, it is beyond reasonable doubt that Earth’s climate is changing and that humans are contributing to that change. Assessments of the climate’s sensitivity and predictions about future global temperatures, however, do not seem quite so clear cut. Still less obvious are the most effective ways to adapt human behavior so as to reduce the risk that the changing climate poses to the species. This aspect of the climate-and-energy policy debate is not an open-and-shut case. Answers will emerge, if at all, through rigorous exchanges in the metaphorical marketplace of ideas.
Free speech begets better policies than censored speech. So when we favor some speech rights at the expense of others, there are trade-offs and real costs. For example, in copyright and trademark law we sacrifice some free speech in exchange for encouraging creativity and preventing consumer confusion. In attempting to strike the right balance courts use use the doctrine of fair use. Similarly, in the realm of reputation, in order to promote robust debate we require that public figures accept a greater degree of uncompensated denigration than private citizens have to endure. In the language of economics, when public figures endure ignominy and absorb its cost, society as a whole acquires a positive externality.
The trade-offs here are considerable. We can hold climate scientists harmless and insulate their reputations even when their predictions serve as the basis for policy decisions that could cause more damage than they prevent. That is the decision the judge made in Professor Mann’s case. We know that Simberg, Steyn, and their publishers are paying a heavy price. But what price will fall on society as a whole?
Simberg and Steyn wrote words that undermined the reputation of a famous scientist. They expressed an opinion that seems to fly in the face of the facts. If the case goes to trial, the central question for the court will be whether their allegations were baseless. But the deeper question for all of us is this: Should the law accord Simberg and Steyn’s speech the same level of protection it gives pornography, or a lower level; as much as flag-burning receives, or not so much; safeguards equal to those it grants the open advocacy of ethnic cleansing, or less than equal?
As we ponder these questions, it is worth bearing in mind whether our answers would be different if the aggrieved scientist was not Michael Mann but Richard LIndzen.
As an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.
Peter Vickery, Esq., 