Limits on Free Speech

Because of my personal story, I have a thing about criminal libel statutes. The idea that a government at any level can prosecute you simply for things you say is antithetical to the rights guaranteed in the First Amendment. I’m glad that criminal libel is well on its way to being repealed in Colorado, and that it is slowly disintegrating as a legally enforceable concept in other states that still have felony libel laws on the books.

Here’s the thing: limits on free speech are all over the place. If somebody doesn’t like what you say or the way in which you say it, there are plenty of ways to stop you and punish you. In the realm of libel and slander, every state has a civil statute that allows people to sue if they’ve been harmed by someone. There are important limits on how these laws operate. Essentially, you’re in trouble if you maliciously lie about somebody. If you are harshly critical, but tell the truth, you’re in the clear. If you couch your criticisms as opinion, parody, or satire, then your speech is protected. Civil disparagement laws are much MUCH better than criminal ones, simply because it’s an adversarial process in which your accuser has to make a case and you can reply to it. Criminal laws cast law enforcement officials in the role of the accuser, and you must justify yourself rather than respond to another party.

Civil litigation still sucks a bag of dicks. The fact that you can effectively defend yourself is all well and good, but the court system is heavily weighted toward those with power and money. Most people would struggle to pay a competent attorney to mount a defense. Hell, a blogger in Colorado that writes a post about somebody in Florida might be faced with a default judgement if they can’t pull together the money for airfare so they can show up in court, much less pay a lawyer. This isn’t even addressing what happens if you are sued in Britain- libel laws there put the burden on the defense to prove that they have not committed a crime, and British courts claim jurisdiction over anything that has been viewed in the UK (they have the internet there!)

The basic rule of the road for civil litigation is that if you offend somebody with enough money to sue you, then they probably have enough money to win. This rule is already evident in patent law. Companies threaten lawsuits that are absolutely nonsensical, but defendants are forced to settle because they can’t afford to mount a defense.

There are plenty of problems with libel laws. The good part is that there are constitutional limits on how they’re enforced, and a good defense is possible. Now that the internet is a huge part in disseminating speech, libel laws aren’t necessarily the biggest sticks around for the offended parties of the world to wield.

It’s ridiculously easy to block publication of online material. Many service providers provide an automated response system that will take down offending posts of text, audio, and video based simply on the claim that they infringe a copyright or trademark. In order to avoid liability, service providers are required to remove material immediately upon a takedown request and the process of appealing the decision can be lengthy or non-existent. The same sort of mechanism can be used in some countries to block entire websites, or to cut off internet access to creators.

Then there’s the vast array of resources that are legally enforceable but mostly outside of the legal system. Depending on your job, there may be a number of legal and contractual restraints upon what you say in public. There are largely no protections for people that are fired by employers for what they might say in a public forum– this affects everyone from school teachers to call center employees. If you’re pissed off at something someone has to say, all it takes is a complaint to their employer and that will more often than not make the problem go away. Federal employees have to constantly watch what they say in order to avoid running afoul of the Hatch Act, which states that government employees can’t engage in political activity.  Any broadcaster has to be very careful to abide by FCC guidelines. If UNC had adopted its school code of conduct at the time I was under investigation, it’s quite possible that I might have faced disciplinary action through the university.

Infringing free speech isn’t difficult. There are large numbers of absolutely legal, constitutional ways to make people stop saying shit and punish them for speaking up. Anybody who wants to try and maintain a blatantly unconstitutional criminal libel law must not be paying attention, or they’re the sort that likes to hunt prairie dogs with a nuclear weapon.


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