The mysterious case of Ms. Carrie Prejean

[kandrathe]

Right, and nothing says "cease and desist" your free speaking like overly enforced slander and libel laws. Just look at all the good they've done over here in the UK, where the rich and famous come to sue people for saying true-but-uncomfortable things about them. And it's not just spoiled celebrities whining to the nanny state to protect them from the mean old journalists. Simon Singh recently got slapped down for saying that Chiropractic treatments for things like ear infections and asthma were "bogus". That's it. He was taken to court and lost, despite the absolute lack of scientific evidence against his clams.

So, by all means, crank up the slander and libel suits. But don't pretend that this won't have a chilling effect on 1st amendment rights, because it most certainly will.

Let's examine it carefully;

Slander: "A type of defamation. Slander is an untruthful oral (spoken) statement about a person that harms the person's reputation or standing in the community. Because slander is a tort (a civil wrong), the injured person can bring a lawsuit against the person who made the false statement. If the statement is made via broadcast media -- for example, over the radio or on TV -- it is considered libel, rather than slander, because the statement has the potential to reach a very wide audience."

Does his statement have the effect of harming the Chiropractors livelihood. I would say, yes. I agree that people should be allowed to voice their doubts about such things, and that the Chiropractors should have their day in court to defend their profession. I think the issue is more that Ernst and Singh did not author a scientific paper, or write about accepted scientific evidence, but rather wrote a book, and then promoted it in the Guardian later, in an article, that targets the consumers who provide the chiropractors their living. The decision by the courts really is if Singh made a "false statement", which I understand has an unusually low threshold of proof in the UK. It seems that in the UK, the statement in question is considered to be a "false statement" until it is proven by the defendant to be actually a true statement.

In the US, <blockquote>" In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

The statement(s) alleged to be defamatory must also have been published to at least one other person (other than the subject of the statement) and must be “of and concerning” the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.

The statement(s) alleged to be defamatory must also be a false statement of fact. That which is name-calling, hyperbole, or, however characterized, cannot be proven true or false, cannot be the subject of a libel or slander claim.

The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.

A defamation claim — at least one based upon statements about issues that are matters of public interest — will likely fail if any of these elements are not met."
</blockquote>Therefore, in the US, the opposite case exists, where the standard of proof of Slander or Libel are very, very high, and the burden is on the damaged party to prove that the statement made against them actually causes harm, is in fact untrue, and in many cases that the person who said it was doing so maliciously with intent to cause harm.

So, when I'm calling for people to defend their rights vigorously, I'm doing that in the context of the laws that I know, not the UK system which seems to need reform. Not that the US system of torts doesn't need some reforms as well (e.g. the matter of targeting everyone with deep pockets and getting excessive rewards beyond actual harm caused).