Stardate 20020819.2307

(Captain's log): Today, John Ray sent me a letter which contained a clear threat to bring suit against me for libel unless I posted a retraction of something I had said about him in this post. I have appended his letter to that post, in case you wish to read what he said. What follows is an open letter to John Ray, on the subject of the legal application of libel law on the Internet and the Web.

This kind of threat of suit is unfortunately common online. I've seen dozens over the years in various forums. Like all those who have made such threats, it is evident that you're not familiar with the legal situation regarding the application of libel law in the US to the Internet. I am not a lawyer but having been on the receiving end of such threats many times in the past (because I'm outspoken), I long since researched it in order to learn whether I was actually in peril. I discovered that I was not, not then and not now.

In criminal law, there is a presumption of innocence on the part of the defendant. The State must prove guilt "beyond a reasonable doubt". In most civil law, the plaintiff and defendant enter court without any presumption on either side. Each side makes a case and the jury compares them to decide whose case was better. Decision is on the basis of "preponderance of evidence" which means that the better case wins, whether it was "beyond a reasonable doubt" or not.

But in libel cases, the First Amendment kicks in, even though it is tried under civil law. The defendant is presumed to be exercising his right of free expression under the First Amendment unless the plaintiff makes a very strong case proving that libel actually did occur. The defendant doesn't have to make a case; there is a presumption of non-libel.

As a result of a Supreme Court decision in 1964, application of libel law is now divided into two tiers of plaintiffs, who are treated differently. At the lower tier is private individuals, who are libeled if a falsehood is printed about them which causes them harm. What they have to demonstrate to prevail is that the statement was false, and that it damaged them.

Defamation law by its nature represents a clear threat to the First Amendment, so the courts want to keep it as closely circumscribed as possible so that it doesn't chill free expression through the potential for its use in threats against others, or out of preemptive fear of suit.

So under normal circumstances, if someone says something false about you then the desired solution is for you to correct the falsehood, and undo the damage yourself. (The famous statement of this is that the solution to too much free speech is more free speech.) However, if a newspaper says something false and damaging about a private individual, then the private individual doesn't have the ability to reasonably communicate a correction to society at large, and thus is damaged with no recourse. Libel law presents such private individuals with a source of relief, in court.

The other tier are referred to as "public figures", and that's because they themselves have access to substantial ability to communicate. For such people, if a falsehood about them is printed somewhere, they have the ability to correct the falsehood and thus do not need succor from the law. Justice Powell explained it thusly in a decision by the Supreme Court:

The first remedy of any victim of defamation is self-help – using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.

For a public figure to sue for libel, they have to surmount a far higher legal hurdle, because it is assumed that they don't need help dealing the damage in lesser cases of libel. They only need legal relief in egregious cases. Because of that, it is necessary for them to prove "actual malice" which is a legal term of art, described as follows:

Publication of defamatory material "with knowledge that it was false or reckless disregard of whether it was false or not." The term originated in a landmark 1964 case in which the Supreme Court ruled that 'public officials' could not recover damages from defamatory material unless they established that it was published with actual malice. As opposed to "legal" or "common law malice", which connotes ill will, spite, etc.

Actual malice involves making a statement with "knowledge of falsity or reckless disregard as to truth or falsity." A public figure must show by clear and convincing evidence that the defendant "in fact entertained serious doubts as to the truth of his [statements] or acted with a high degree of awareness of . . . probable falsity."

The First Amendment requires a plaintiff who is a public figure to demonstrate actual malice by clear and convincing evidence.

The reason why that is important is the odd fact that under the applicable definitions in libel law, essentially everyone who participates on the Internet is a "public figure" w