Malice In Blunderland

I’ve said many times that I’m no lawyer, just a layman with a fascination for it. Every now and then, though, something comes up that makes me almost kinda sorta wish I had gone to law school, because it raises the kinds of questions that would now likely cost me a couple of hundred bucks to get answered.

Unless, of course, I find a way to get legal minds to answer it for me for free. And I have my super-secret never-fail technique to get experts to do that for me.*

Ever since my halcyon days on my college newspaper, I’ve been fascinated by slander and libel laws. The balancing of the First Amendment guarantee of free speech against the real harm that can be done by unchecked lies about people (such as, say, publishing a list of convicted sex offenders and inserting the name of a personal adversary as a “joke”) is an ongoing struggle.

The elements of legally-actionable defamation seems to revolve around hitting certain criteria: for someone to actually collect for their name being sullied, the courts have a little checklist they have to follow, and every box has to get ticked.

Was the statement false? (Truth is an absolute defense. For example, I can freely call Bill Clinton or John Edwards “adulterous scumbags,” but with Al Gore I’d have to say “alleged adulterous scumbag.” Especially since “scumbag” is a purely-subjective pejorative term, and not something that has a legal definition.)

Was the target of the statement actually harmed by it in some verifiable way? (As above, calling someone a “scumbag” is not really that harmful. Also, some people’s reputation is already so heinous, that they can’t me made to appear worse. I doubt anyone would ever get sued for saying Charles Manson cheats at cards.)

Was the statement made to or in the presence of a third party? (If I call you an adulterous scumbag in front of no witnesses, who cares? You know whether or not it’s true, and “he hurt my feelings” is not (yet) a legally actionable cause.)

In the case of public figures, did the speaker demonstrate “actual malice?” This does not necessarily mean “I really don’t like that guy,” but that the speaker either knew the statement was false at the time, didn’t care in the least if it was true or not before saying it was. (“Reckless disregard” is the precise legal term used.) This came about because it was hard as hell to show “malice” in its original meaning — that the speaker really, really didn’t like the target and said the false thing to cause harm.

It’s that last point that got me thinking. I’m starting to believe that the proving of “malice” in the classic sense is getting easier and easier, in the age of the internet. And two very recent examples set me off.

The first was the Dave Weigel – JournoList mess. Weigel was hired by the Washington Post specifically to cover the conservative movement — and he said quite a few mean things about those he was assigned to cover. With the exposing of his supposedly-private comments on JournoList, we get a glimpse of his true thoughts and feelings, revealed in a way that he thought was free of scrutiny — and, therefore, likely to be honest. His animosity to conservatives — both as a movement and as individuals — is made exceptionally clear in those unguarded words.

The other was the ever-entertaining dustup between two of the bigger guns in the blogosphere — the rising star Robert Stacy McCain and falling star Charles Johnson. The two have a serious feud going on (more serious, it seems, on Johnson’s side — the guy is positively grim on the matter, while McCain at least tries (and usually succeeds) to make the matter at least slightly laughable), and Johnson’s vendetta against McCain makes for some very entertaining reading.

(Yes, I used to be a very big LGF fan, before Charles went nutso and used a whole Ginsu gift set on the backs of the people who helped made him so successful. So yes, my sympathies are entirely with McCain on this one, because — say what else you want to about him — the guy can write. He’s an exceptional wordsmith.)

Anyway, back to the topic at hand. I think that the feud between Johnson and McCain is relevant here because one could easily use the LGF archives to document actual, real, classic malice on Johnson’s side against McCain. “Malice,” as in “a desire to harm others or to see others suffer; extreme ill will or spite.”

Should McCain ever get to the point where he decides to actually take Johnson to court (and he hints that he’s laying the groundwork here, where he says that Johnson is deliberately trying to cause financial harm to him:

“… just in case anyone hasn’t figured it out, Charles Johnson’s repetitive application of various “hate” labels to this blog is an attempt to deprive me of gainful employment and/or advertising revenue. This is of a piece with his repeated attachment of “Nazi” and “fascist” to the names of Geller, Spencer, et al. Johnson does these things not as a childish Godwin’s Law stunt, but with full knowledge of the damage he seeks to inflict.”

All this is entirely speculative on my part, of course. I’m no lawyer, and I have had no communications whatsoever with Johnson or McCain over their fight. But this amateur’s eye sees McCain — who has shown that he’s a lot cannier than he lets on — not only making preparations for a lawsuit, but doing so publicly and openly (but subtly).

Some would take that as a warning. Johnson, I suspect, will either not notice it or take it as a challenge.

Either way, it’s good entertainment for blog-wonks like us.

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*All I have to do is simply state my opinion and declare it as fact. NOTHING invites people to jump in and give their expertise away for free than a chance to say “hey, stupid, you’re completely wrong!” And all it costs me is a teeny bit of embarrassing — which I can handle quite easily.

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