Want to strike a blow against cancel culture and the power of the media? Then don’t simply complain, do something: Make it legally risky to throw around the allegations that are a canceller’s bread and butter. Expand defamation law, and make clear that bogus accusations of being a “racist” or “white nationalist” are factual smears and defamatory per se.
American common law recognizes two different breeds of defamation: “Defamation per quod” and “defamation per se.” In “defamation per quod,” a false statement is not inherently damaging, and a person must demonstrate specific and concrete harms its publication caused. For instance, UVA dean Nicole Eramo’s lawsuit against Rolling Stone for portraying her as indifferent to a gang rape (which never actually happened) was a successful defamation per quod claim.
“Defamation per se” denotes statements so inherently damaging that their false utterance is presumed to hurt the target, no matter what – even if he cannot prove economic harm. The damages are simply assumed automatically. When a libel or defamation case involves statements that are defamation per se, it is substantially easier to win a case. But just as importantly, by reducing the pleading hurdles at the outset of a case, defamation per se makes it much easier to hold a defendant’s feet to the fire in discovery — for example, by demanding all Slack or Journolist logs pertaining to the smear.
What struck me as odd is that, if my reading of legal history is any indication, it was once defamatory to accuse a white man of not being a racist. What I have in mind comes from the 1954 case of Quentin Reynolds v. Westbrook Pegler et al. Pegler defamed Reynolds in a column that alleged, among other things, that Reynolds often attended gatherings at which there was “no color line:”
[Pegler’s column] charged that Reynolds was a member of the “parasitic, licentious lot” which surrounded Heywood Broun; that Reynolds was a member of the nudist group consisting of Broun and “his friends of both sexes,” in which “there was no color line and a conspicuous Negro Communist of the present day…” had “seduced a susceptible young white girl at Heywood Broun’s”…
[From Louis Nizer’s legal autobiography My Life In Court. Hyperlink and emphasis added by FWP.]
So what is widely if dubiously regarded as reprehensible today – keeping blacks and whites apart socially – was considered de rigueur among the Northeastern elite of 1954! Tempora mutantur, to be sure!
As satisfying as it might be to retaliate against the Cancellers, I’m against adding in more “forbidden” words. I favor retaliation against those who use excuses to jettison employees or students from participation in public life. Make them PROVE their accusations in court.
That’s the point, Linda. If accusing someone of being a racist or a white nationalist is elevated to a charge of defamation per se, that burden would fall upon the accuser. The only defense against a charge of defamation per se is proof of the thing alleged. Nothing else will get you off. As matters stand, the victim of the slander would have to prove that he had been materially harmed by the accusation, which is exceedingly difficult in the current legal environment. Sometimes it’s not even possible.
One obvious difficulty with that plan: In order to expand the scope of defamation per se, we need a judge to agree to expand the scope, not be overturned on appeal, and then accepted as precedent by judges in other jurisdictions. That’s how the accusation of having syphilis, for instance, came to be viewed as defamatory in itself, and how that accusation fell out of being per se defamatory once a cure was developed.
The other approach would be to have legislatures explicitly make the accusation of being, say, a white supremacist defamation in black letter law. I don’t see that happening and would not trust legislators to limit their scope. What else would become actionable words? Calling someone a libtard?
Granted that there are risks involved, it’s still an intriguing possibility to contemplate. The limitation-of-scope aspect would be important — I wouldn’t want “he’s an ignoramus” to become a defamation per se — but let’s put this idea into the “what if / to be further analyzed” basket, for reconsideration should better legislative or judicial prospects arise in the future.
Pistols at dawn would solve it all. We should have never antiquated dueling.