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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.

*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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Comments (11)

I believe that Charles John... (Below threshold)
Burt:

I believe that Charles Johnson has been duct taped to his kitchen chair and his blog has been commandeered by journolisters. (wow, me a conspiracy theorist...who knew)

LittleGreenFootballs is sti... (Below threshold)
zipity:

LittleGreenFootballs is still around? Huh. Hadn't thought about it for ages. And I intend to continue to not think about it...

LGF sure ain't what it used... (Below threshold)
JLawson:

LGF sure ain't what it used to be. I think Charles took one too many headers off his bike...

Jay, Your not too old to go... (Below threshold)
914:

Jay, Your not too old to go to law school. Your very smart and Your younger then Me. If Barry can become President, Your chances are 100% that You would succeed.

I've thought about it? Sure would beat what Im doing now. Paying for it is the problem. I dont have unlimited fund's like Barry.

With regard to the stipulat... (Below threshold)

With regard to the stipulation that someone has to read/hear the disparaging remarks -

If nobody reads that blog anymore, have the disparaging remarks been read? and if not, has harm been done?

If a tree falls in the woods and nobody's there to hear it does it make a sound?

/yes, I'm being sarcastic
/proud member of the banned of brothers

I can see Pelosi running ar... (Below threshold)
retired military:

I can see Pelosi running around saying "off with their heads"

How many viewers does Johns... (Below threshold)
GarandFan:

How many viewers does Johnson have now, two, three?

"At one point, I asked r... (Below threshold)
914:

"At one point, I asked readers to suggest an epithet for Algerians, a situation where generic anti-Arab terms would not do."


Algorians?


CJ's blog fu is weak, as is... (Below threshold)
Gmac:

CJ's blog fu is weak, as is his ability to think rationally.

The only time I am aware of him these days is when he is mentioned on this or the AoSHQ blog.

Personally? I believe he's nucking futs.

CJ gained a large following... (Below threshold)
Jim Addison:

CJ gained a large following after Rathergate, although all he really did to advance that story was compose the animated GIF image superimposing the alleged '70s document with one created on MS Word. Unfortunately, it went straight to his head.

Already an apparent narcissist, his ego swelled well beyond the limits of his skull, resulting in severe meglomania with paranoid tendencies. He began banning people for the slightest disagreement, leaving him with a small but devoted core of followers whose unquestioning loyalty borders on the creepy.

As his traffic has dived, his paranoia and aggressiveness exploded. He switched to a raving leftist maniac, began attacking conservative bloggers, and generally manifesting a mental breakdown.

One of his loyal toadies, I think it was "Kilgore Trout," even admitted posting racist comments on Hot Air so that CJ could accuse MM & AP of racism. They openly discussed it at LGF and decided it was a fair tactic - or rather CJ decided it, because he does all of what passes for thinking over there these days.

CJ's mental meltdown may land him in a psych ward or worse, and could be an indicator of Obama's own future if things don't go his way.

I find it interesting that ... (Below threshold)
SCSIwuzzy:

I find it interesting that CJ decides to rail against the party out of power... like the little guy in class that always sidled up to the biggest bully and became his best, if ignored, friend.




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