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by Rachel Neuwirth | Los Angeles
I frequently express my opinions on the Internet, and as a result I have as much of an interest as anyone in this country in preserving the right to freedom of speech. I am passionately committed to this right, which is enshrined in the First Amendment to our Constitution. However, I am also concerned about the way that our courts and our society in general have come to misconstrue "freedom of speech" to mean a right to verbally abuse, insult, slander or libel other people with complete impunity,with no risk of having to pay civil damages for inflicting these kinds of hurt on another human being. I have had a painful personal experience with this misconstruction of what freedom of speech really means and should mean. In 2007 the publisher of a web blog proclaimed on his site that I had "made a death threat" against "a prominent Mideast peace activist" and that I was a "Kahanist swine." In reality, I have never in my life made a threat to kill anyone. And I have never had any connections to the Kahanist movement or any Kahane-oriented organization. I have never even mentioned the late Rabbi Kahane or his followers in any of my published writings, or much the less advocated on their behalf. Nor have I ever written for any Kahane-oriented publication. Since the U.S. State Department officially lists several Kahanist organizations as terrorist groups, I believe that this kind of name-calling can lead people to believe that I am a terrorist or at least a supporter of terrorism. Actually, I condemn and loathe terrorism and violence by anyone, whatever their political rationale. And of course, I don't appreciate being called a "swine" in writing and in public by a man whom I had never even met and with whom I had never even communicated. Who would? These accusations, although they are only two of the many false and defamatory statements about me that have been published on this web site, and that have continued to be published up to the present moment, were the ones that I cited as the basis for a lawsuit seeking redress for libel. I named the blogger and a second individual who was the source of the "death threat" story as defendants. But a judge has "tentative[ly]" dismissed my complaint without having heard any oral arguments about it, without having ordered a discovery process to find evidence, and without having permitted or ordered a single witness to be sworn in, to testify, or to be cross-examined. He did not make this ruling on the basis of a conclusion that the statements about me were true, or even that there existed some rational basis for believing them to be true; nor did he conclude that these accusations did not inflict hurt on me and did not damage my career and standing in the community. He did not even conclude that the accusations were made without malice "in the ordinary sense of the term." On the contrary, he ruled that the defendants "committed libel per se" and/or that their verbal attacks on me "are libelous per se." Rather, he dismissed my suit on the basis of a California statute known as the "anti-SLAPP (Strategic Lawsuits Against Public Participation)" law, which "privileges" any public speech about "public issues" or "matters of public interest" from most liability to civil damages. I have appealed this ruling to a higher court. After already having written his "tentative" opinion and distributed it to the three attorneys representing the parties to the case, the judge then permitted them a total of 20 minutes of oral argument about it ( i.e., about six-seven minutes for my lawyer to state my entire case, including refutation of the putative "anti-SLAPP" privilege). He then proceeded to make his decision "final" without addingor revising a word of his "tentative" ruling. It is hard to imagine a way of reaching a decision that more precisely illustrates the original meaning of the word "prejudice" - meaning a pre-judgment arrived at by ignoring the facts. Since in the judge's opinion the case fell under the privilege of the anti-SLAPP law, he ruled that I was obligated to prove not only that the allegations were false, but that the defendants knew they were false when they made them, or at least had "serious doubts" about their truthfulness. And I was expected to prove all of this without having access to all of the relevant documents in the case (which are obtained by a court through the "discovery" process), without having been permitted to call or examine a single witness, and even before presenting any oral arguments to the judge. Obviously, there is no way one can find out what a libeler's state of mind was, what he knew or what he thought he knew when he committed the libel, without questioning him and hearing his testimony. And how could I possibly prove that a person capable of making reckless and defamatory accusations against me, without even a rational basis for assuming them to be true, has "serious doubts" about anything? Only people who have a conscience and an open mind are capable of harboring "serious doubts" about the truth of statements that reinforce their biases - and libelers are most unlikely to possess either of these humane qualities. The trial court judge thus placed an impossible burden of proof on me, one that no victim of libel could ever meet. Judge Reid ruled that the libels against me came under the privilege of the anti-SLAPP law because a) I was what he termed a "limited purpose public figure" (I wonder if there is also such a thing as a "limited purpose journalist," or a "limited purpose judge."); b) because the libels were made in a "public forum," and c) because the libels constituted discussionof a "public issue." I have bones to pick with all three of these characterizations. The judge finds that I am a "limited purpose" public figure because I"voluntarily seek to influence the debate on the Israeli-Palestinian conflict by writing articles and commentaries (by [my] own admission)." Does this mean that anyone who has "voluntarily" spoken out about a matter of public concern may be libeled with impunity? Should it be permissible to make false accusations against someone and unfairly drag her name through the mud simply because she has dared to "thrust [her]self to the forefront of a particular public controversy in order to influence the resolution of the issues involved?" Far from encouraging freedom of speech, this sort of ruling will tend to inhibit it, because many people will not risk even sending a letter to the editor of a local newspaper, about a local issue, if they can be subjected to a retaliatory smear campaign with impunity. Unscrupulous individuals always have a special incentive to slander or libel other people who have publicly expressed opinions contrary to their own, since personal attacks have always been one way, although a thoroughly immoral and irrational way, to silence or discredit opposing views. And there is always more of an incentive to libel someone who is in the public eye than someone who is unknown to the public. Who wants to read a newspaper or magazine with malicious gossip about unknown individuals? Ought this to mean that a person who is known to sections of the public, and/or has expressed opinions about issues of public concern, should forfeit her right to a good name and honorable reputation? Should it mean that only people who have kept quiet about their opinions, or who are not regarded as interesting or important enough to merit the attention of the press, should have their right to a good name protected by the law? Whatever happened to the Fourteenth Amendment, which promises all Americans, whether "public" or "private" persons, the "equal protection of the laws?" The judge's finding that I was attacked in a "public forum" is dubious because the web site where the libels were published is defined by its publisher-defendant as a strictly private place, equivalent to his private residence: "Those who comment here are guests in my home. Anyone who treats my home, me or readers with disrespect will receive no respect in return. . . . Any one who violates [my] rules. . . may find comments moderated or banned." Among his "rules" are prohibitions on the expression of six distinct categories of opinions; bans on the use of seven different political words or phrases; awarning to only use four other terms "VERY carefully;" and bans on links to at least nine listed web sites, as well as unspecified "other propaganda sites." Some freedom of speech! Elsewhere, our blogger-libeler has claimed that"Web hosts have no obligation to honor free speech. Blogs & websites are not the public square . . ." While seeking shelter for his own libelous speech under California's anti-SLAPP law, this individual has not scrupled to have web sites that ridiculed him closed down. The "Alef" discussion group, through which one of the libels was transmitted to our blog publisher-libeler, is an even more private place. According to Alef's rules, "This is a closed list, which means your subscription will be held for approval. You will be notified of the list moderator's decision by email. This is also a private list, which means that the list of members is not available to non-members." Far from permitting unfettered freedom of speech even to members of this exclusive club, Alef's moderators prohibit publication of any material that they deem "offensive information, religious, sexual or racial, that may be insulting to any person, corporation and/or any group," or "abusive and blatant language, personal attacks . . . towards persons within and outside the distribution list" (presumably the moderators did not feel that the libel directed against me fell within these categories). I have been banned from any access both to the offending web site and to "Alef," and cannot possibly reply in either "public forum" to the attacks on me. I am not even allowed to read the personal attacks on me in these internet media, much less respond to them there. Judge Reid gets around this problem with the claim that the cyberspace places where I was libeled are "public forums" by arguing that the entire "Web" is one big public forum. In support of this ruling, he cites the opinion of another judge in a different case: "In a sense, the Web, as a whole, can be analogized to a public bulletin board. . . while [a blogger or webmaster] controls her Web site, she does not control the Web. Others can create their own Web sites or publish letters or articles through the same medium, making their information and beliefs accessible to anyone interested in the topics discussed in [the defendants'] Web site." This view is nearly identical to that of our libelous blogger-webmaster, who advises readers of his "comment rules" that "blogs are the property of the owner. If you can't say what you like here following the rules you are welcome to create your own blog and have your say there." According to this logic, London's notoriously exclusive private men's clubs can be regarded, taken all together, as a public forum, since if you are slandered in one of them, you can always join another and present your version of the facts to the members of your new club; or if that proves impossible,you could always start up your own club and make your reply to your newly recruited clubmen there. Of course, the people who will hear your reply, even if you find a way to make it, will not be the same people who heard the libel. And that is equally true if you reply to a libel on one web site with a self-defense on another site; since there are tens of thousands of sites on the web, there is no reason to assume that the people who were exposed to the libel will ever read, or even know about , your self-defense. And it is even more difficult for a victim of a libel posted on a private internet discussion group to reach the members of that group, whose identity will not be known to her. In any event, once a libel is "out there," some, perhaps many, people will believe it even if some of them read the victim's published self-defense. The ability to publish a reply is not sufficient vindication or compensation for a victim of libelous attacks. Throughout history, most libels and slanders have been perpetrated in "public forums" in the broadest sense of this term -speaker's rostra, books, pamphlets, newspapers, television and radio stations, etc. Indeed, one element in the legal definition of a libel is that it must be "published" -meaning circulated by means of a public medium of communication of some sort. A legal ruling that says that anyone who publishes a libel in a "public forum" is shielded from liability for damages inflicted on innocent persons comes perilously close to shielding all, or nearly all, libelers from responsibility for their actions. The judge's finding that the defendants' attacks on my personal character "involve a topic of widespread public interest, i.e., the Israeli-Palestinian conflict," presupposes that I am some sort of belligerent or combatant in this conflict. And this assumption is completely untrue. I do not represent or serve in the armed forces of either side; nor do I represent or belong to any government or organization that is a belligerent in this conflict. I am a non-combatant civilian. How then is a verbal attack on me discussion of the "Israeli-Palestinian conflict?" The idea that discussing a war in public makes one a participant in it comes dangerously close to sanctioning not only libel against journalists but perhaps physical attacks on them as well. Judge Reid makes explicit his view that personal attacks on an individual who holds opposing views on an issue of public interest are a legitimate part of public debate about that issue: Defendant Silverstein's statements do contribute to the public debate to the extent that they characterize Plaintiff's views and opinions [the views and opinions of Defendant's opponent] as "Kahanist" [extreme, right-wing, terrorist][1]. Defendant Beinin's statements also contribute to the public debate in that they pertain to the character of an outspoken commentator, Plaintiff. The ruling that defamatory and false ad hominem attacks directed against an individual "contribute to the public debate" about any public issue is one that I find especially outrageous. It sanctions the debasement and degeneration of public debate about issues into name-calling and mud-slinging directed against individuals. This sort of deterioration of public discourse is actually a threat to democracy, since it substitutes the reasoned discourse that citizens need to hear in order to form educated opinions with intimidation and appeals to irrational and baseless hatred. Verbally assaulting an individual is something very different from discussing or debating an issue. Equating these two very different kinds of discourse is like saying that it is a legitimate part of a football game for a fan of one team to beat up a fan of the opposing team. Judge Reid appears to perform intellectual summersaults in an effort to reconcile his ruling that the assertion that I am a "Kahanist swine" is not legally actionable with his admission that this statement is "libelous per se." He argues that "although the ‘Kahanist swine' statement is defamatory to Plaintiff on its face, since it is not phrased in a factual way, it is likely to be construed as an opinion," and "statements of opinion are constitutionally protected, while civil liability can be imposed [only] for statements of fact." Why is the "Kahanist swine" canard likely to be regarded as only a statement of opinion? Because "it is clear that Silverstein often criticizes certain individuals, and he is criticized by them. In this context, the reader of the blog will construe the ‘Kahanist swine' comment as Silverstein's opinions regarding Plaintiff's beliefs, and not a factual statement that she is in fact a Kahanist or a ‘swine.' " In other words, since the defendant is in the habit of name-calling and engaging in verbal abuse, no one will take his accusation seriously. Where have we come to as a country when it is considered a legitimate legal defense for making false and damaging accusations against another person that one makes such accusations frequently and habitually against many people? Why should libel become legitimate simply because it is done frequently and habitually? The very fact that a California state judge is capable of regarding verbal abuse and mud-slinging as "contributions" to public debate about public issues shows how far we Americans have strayed from the values of civility and rationality in the public square. A democracy cannot make rational decisions without at least some degree of civility and rationality in public debate. Ultimately, exempting public speakers from all civil liability for malicious lies and verbal abuse threatens democracy as much as government suppression of free speech. John Landau contributed to this article [1] The words in brackets are part of the judge's opinion, not added by R.N.

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