- - Sunday, April 19, 2015

ANALYSIS/OPINION:

First Amendment lawyers always get asked the same question: Is he really allowed to say that?

The “he,” inevitably, is some television pundit, newspaper columnist or blogger. And the “that” is a stream of invective. A pointed example is economist Paul Krugman’s characterization of Rep. Paul Ryan’s 2012 budget proposal: “The most fraudulent budget in American history. And when I say fraudulent, I mean just that.”

So if he meant “just that,” the question goes, isn’t that libel, and why isn’t Mr. Ryan suing him for damages?

And from time to time, we’ve heard the same question raised about one of our own cases, climate scientist Michael Mann’s lawsuit against detractors who harshly criticized his “hockey stick” research. We represent two of the defendants, the Competitive Enterprise Institute and its adjunct fellow, Rand Simberg. They called Mr. Mann’s work “intellectually bogus” and biased “data manipulation” done “in the service of politicized science.”

So is it libel? Some may respond with a smirk that truth is an absolute defense, but the answer is actually more basic: There’s nothing to be proven true or false.

Libel law is subject to the First Amendment. Its guarantee of freedom of speech wouldn’t be worth much if the government could authorize private citizens to sue one another over their views. At a minimum, a challenged statement must contain (in the Supreme Court’s formulation) a “provably false factual connotation.”

As simple as that rule is to articulate, it has proven complicated to apply in practice. It is not an “opinion defense.” In other words, one cannot escape liability for a slander — for example, “Rep. Jones took a bribe” — merely by prefacing it with “I think” or “In my opinion.”

At the same time, it is also not enough that a challenged statement merely involve facts. If that were the rule, practically any speech could be the basis for a lawsuit. Assertions of fact underlie nearly all statements of opinion, and basic human communication — let alone punditry and debate — would be impossible if the airing of sharp opinions could lead to a court battle.

The U.S. Court of Appeals for the District of Columbia Circuit was forced to confront these issues directly when Dan Moldea, author of the expose “Interference: How Organized Crime Influences Professional Football,” brought suit against The New York Times over an unfavorable review that said the book was marred by “too much sloppy journalism.” No doubt that conclusion could damage the career of a professional journalist like Mr. Moldea, causing him the kind of injury recognized by libel law. On the other hand, though, isn’t spirited criticism at the heart of the First Amendment? This was the same line-drawing problem that had vexed courts for decades: how to separate protected commentary on the facts from potentially libelous statements of fact.

The D.C. Circuit’s solution was elegant. “Sloppy journalism” couldn’t be libel because it was a “supportable interpretation” of the undisputed facts: the contents of the book discussed in the review. “Interference” contained what the reviewer identified as several errors and omissions, and a reader would understand that the negative conclusion was simply “the writer’s interpretation of the facts presented.” Or, as one appeals court put the more general principle, if a speaker “is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable” as libel.

This approach has been widely adopted. Thus, courts have recognized First Amendment protection for things like a critic’s dig at a second-rate “Phantom of the Opera” (“a rip-off, a fraud, a scandal, a snake-oil job”), a sports columnist’s criticism of a basketball coach (she “usually finds a way to screw things up”), and a magazine’s charge that a political firebrand suffered “bouts of pessimism and paranoia.” It equally protects Paul Krugman’s intemperate remarks; at the end of the day, he was just expressing his view of the Ryan budget.

The same is true of Michael Mann’s critics. They identified the basis for their views: Mr. Mann’s research, detailed criticisms of his statistical techniques, and leaked emails disclosing that he had employed statistical “tricks” to “hide the decline” in projected temperatures and had participated in efforts to blackball scientists skeptical of catastrophic global warming. Their words are, therefore, protected, no less than Mr. Mann’s criticism of competing scientists’ research as “pure scientific fraud.” A reasonable reader understands that these statements are not accusations of literal fraud, but strongly-stated criticism.

So where subjective views are concerned, the answer is yes, you really can say that. Occasional incivility is a small price to pay for freedom from government policing the boundaries of acceptable discourse.

David B. Rivkin Jr. and Andrew M. Grossman practice appellate and constitutional law with the firm of Baker & Hostetler in Washington, D.C.

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