Freedom of Speech and Freedom of Silence

Do you ever get blogger-haters?

I get emails from friends (and my younger brother) asking me if there is anything that he/she can do because someone posted something mean or untrue on Facebook or a blog entry. The question comes down to "Is there something you can do?" Hm... let me find my legal magic wand...

The Bill of Rights guarantees the rights of Americans by limiting the powers of the federal government. The 14th Amendment applied the Bill of Rights to state government. Rather than going into details about the Supreme Law of the Land, I'll focus on one area that affects everyone, even non-Americans. That's the FREEDOM OF SPEECH. It is adopted in the United Nations Universal Declaration of Human Rights and the European Convention on Human Rights in almost mirror image.

The First Amendment states in part, "Congress shall make no law . . . abridging the freedom of speech. . ." What does this really mean? Well first off, it means that the law only prevents Congress from abridging the freedom of speech. Of course, today, it also applies to state government. While it looks like the law says the government can't make any law that limits the freedom of speech, we know today that it's not true. Over time, the Supreme Court has carved out exceptions on top of exceptions to the freedom of speech. Speech are either  "protected", "unprotected" or "semi-protected". A speech that defames someone is not protected by the freedom of speech. The government can regulate or prohibit it.

Defamation is actionable (in court) when someone tells a lie about you to another person, and that lie caused harm to your reputation. This is a matter of state law, and each state has its own variation of this rule. To win, you have to prove to the court (or jury) that the "lie" is really a lie. That means that opinions (something that is unprovable) cannot be defamatory (even if its insulting). You ultimately have the burden of proving that something is not true. So let's say someone accuses you of stealing pencils from work. How do you prove that you didn't steal something that was never taken? It's almost impossible to prove a negative, so it's an uphill battle. You certainly do have a case if your former boss tells your prospective employer something untrue and that causes you to lose the job--but to prevail you have to prove that it was a lie (and not an opinion) to begin with.

There is an exception to the above rule. I remember it because my law professor called it the CLUB factors. If someone tells a lie that accuses you of committing a Crime, having a Loathsome disease, being Unchaste, or committing a Business wrongdoing, that person has the burden of proving that it's true. For example, if someone tells your boss that you have AIDS (assuming that you don't have it), and you sue that person for defaming you (and ruining your game), the burden is on that person to prove that it's true. If that person can't prove that it's true, you win. All you have to do is file the lawsuit alleging defamation. Again, some states have changed the default common law rule.

I won't go into details regarding the media because they have much more leeway. That is, they can be wrong when they report the news so long as it was an innocent mistake.

Although I'm discussing your rights here in an adversarial manner, I know that not everything calls for lawyers to resolve. As Judge Cardozo once said, even a dog can tell the difference between getting kicked and being tripped over. But certainly, see an attorney if you think you have something worth going into war over.

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