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Greg Newburn said...
There is no First Amendment right of defamation...
Tue Oct 17, 04:21:38 PM
ns said...
but there is one of speech, which defamation is a form of. what would our market look like if we were forbidden, by law, from giving other potential customers fair warning that someone's services are bunk? if scheff didn't want her to talk about her services, she should have put that in a contract.
Tue Oct 17, 05:04:22 PM
jack vendredi said...
If your statement is provably (and purposefully) fallacious, and causes harm, then it isn't protected.
That is why libel and slander laws have been part of the common law since the 13th century. Indeed, the burdon of proof is on the plainiff (the one allegedly defamed), which is codified in deference to the harm more overt restrictions could cause.
Newburn is right. Since the common law on libel and slander was well known to the Convention, they would have expressly provided for a right to defame someone. Truthful (or truthfully intentioned)
Morevoer, imagine a world in which you had no right to clear you name of published untruths.
Wed Oct 18, 11:42:24 AM
ns said...
you're point is well taken. however, "a world in which you had no right to clear you name" would only exist if there was no/little freedom of speech, right? i'm just thinking aloud, but in the realm of public opinion, it seems like it's basically he-said she-said where the one with the best evidence or most funds wins. kind of like in the courts.
perhaps it makes sense to institutionalize this for efficiency's sake but i definitely think that's an open issue with lots of pros and cons. but i'm not so much persuaded by the structural-functionalist type argument that just becuase an institution has existed for a while means it is serving a useful function. or, rather, that it's the best way to handle the situation.
but the issue in this case, from my albeit limited understanding, is that she received an allegedly bad product, told people about it, was sued, and didn't have the funds to defend herself. SO, that means companies that cater to poor people can sue the pants off of anyone who tells other about their bad service, and will always win? hm. sounds bad to me. i guess we could provide welfare for that kind of thing, but it just seems like the lady who swallowed the fly at that point.
Wed Oct 18, 01:17:41 PM
Greg Newburn said...
There's no cause of action if what is spoken is true. In other words, "truth is a defense" to defamation. Now I get it, what about a defendant who can't afford to make the argument, etc., but that's no way to create rules...
I used to argue with my interns about this. For some reason they were almost always stuck in this "freedom is absolute" nonsense we unfortunately see so often in the libertarian crowd. Fortunately for me, I've purged myself of that group nearly completely, and have surrouned myself with ignorant and apolitical high school kids.
It's fantastic.
Anyway, I'm still right.
Wed Oct 18, 11:21:39 PM
jack vendredi said...
Well, I made and do not make a claim of efficiency in an adversarial court system. Indeed, I am not functionalist. I may, though, be a structuralist. The court system as an institution may not change because, given the current state of the world, among those people who could change it, it is not beneficial for them to do so. This is true even if all parties could see a better outcome.
Your suggestion, NS, is that all speech should be unrestricted. I imagine then defamation suits would be disallowed. Then hypothetically, I could accuse someone (how about you) and set of nefarious crimes (rape, murder, pedofelia) in a public setting. If a large enough group of people believe, then your reputation could damaged, perhpas so much so that you would lose your job (espeically if you were a public servent). Maybe you would have to move
What could you do? You could disagree publically. Maybe some people would believe you. The first question, then is how many would believe? Would it be enough to salvage your rep. Of course, I could just say your are wrong. OF course you may have evidence (for exmaple a clean legal record). I can imply that your crime has gone undetected, but is still a true statement. You don't have much recouse.
The argument regarding inquality is a little weak as a well. Inequalities in wealth may actaully exacerbate the use of defamation. In the same scenario above, asume that I, the defamer, are orders of magnitude more wealthy than you. Now you are totally screwed. I will just buy TV time, or gain access to `trusted' public sources to continue by defamation campaign against you. You might call press conferecm, but I will buy off the press.
To be sure, I acutally agree with the sentiment---perhaps those qualified on a means basis should be provided with representation in civil courts as we do with criminal courts---but inequality is a thin reed on which to balance an argument against defamation laws. Inequality is bad in both states of the world when someone's reputation has been impugned.
Thu Oct 19, 01:28:56 PM
Greg Newburn said...
Jack,
I think what you meant to say was, "Greg was totally right, and he kicks ass."
If THAT'S what you were getting at up there, I agree completely.
Thu Oct 19, 09:00:51 PM
Anonymous said...
Carey Bock is far from a victim - she is the VP of Marketing for a bank in LA - she attended 2 depositions with her expensive lawyer AFTER Katrina, this lame excuse to catagorize her as a victim is nothing but a smoke screen to the reality that libelous comments were held accountable. She agressively fought this case for over 2 years with a prominent law firm in Ft. Lauderdale. So to say this is some poor low income person, you are being snowed by what seems to be her followers. If you read back about Carey Bock, she states she spent $20,000.00 to get her boys out of Dundee. For some poor person, where would she have come up with that? Even if it was on credit, most legitimate poor person usually doesn't have that kind of credit.
Even if you are poor, you know to put forwarding addresses to the Post Office. She clearly knew there was a trial, she admitted that in her USA Today article, so why didn't she call the courts? It seems she made a conscience decision to ignore it. After 2 years of fighting this case, it just doesn't go away. I bet even a poor person would know that.
Bock maliciously attacked Scheff and had nothing to substantiate it on. The jurors studied extensive evidence prior making this verdict. Defamation and invasion of privacy is not tolerated. The jury sent a strong message.
Just some thoughts for you to ponder on.
Sun Oct 22, 10:40:55 AM
Greg Newburn said...
Anonymous,
I think what you meant to say was, "Greg was totally right, and he kicks ass."
If THAT'S what you were getting at up there, I agree completely.
Sun Oct 22, 06:27:48 PM
ns said...
anonymous, i completely agree that Carey Bock probably could have gotten there somehow, even if she just represented herself. she could have hitch-hiked for pete's sakes. yet i don't understand why, if she's so smart, together, rich, etc., she didn't continue with the case. or show up to trial.
but regardless, there are some people - i imagine - who do not have the resources (or health) to go to trial, which is why we have to be so careful about the fairness of our laws. the jury in this case (rather, the legal system) seemed to say that if you can't show up and tell your side, you're guilty. ms. bock wasn't there to show she had reason to believe what she said, or do defend against charges of malice. so regardless of whether or not she should have lost anyway, there's no way that the jury could have gotten the "extensive evidence" they needed to interpret the case. therefore, if you can't show up, you have no speech rights. that just doesn't seem ideal.
you're right, as far as this particular case and current law goes, free speech is not protected - and my point is that that's a shame. i'm not a legal expert by any means, but what i see is this: in 1964 courts decided that false statements are protected by the constitution. they said that since in public debate error is inevitable, and it would be tantamount to self-censorship to restrict on that score. from what i understand the defendant had reasons to believe that what she said was true. since falsehood is not a test of defamation, instead actual malice (which the court made clear in garrison v. louisiana), the only proof that needed be given was that somehow the defendant had reason to think what she said was true. but then the court made a (in my mind) bad decision that for private persons, truth must be proven to some extent. if falsehood but no malice are proven, you can seek damages for provable injuries, but if malice is proven you can seek punitive damages. i guess my point is that malice is ridiculous - if you believe you've gotten a raw deal of course you'll be angry. you'll also want to put them out of business. that's natural and just.
Sun Oct 22, 07:31:31 PM
ns said...
and greg, you're a dork.
and i can prove it in court!
Sun Oct 22, 07:35:42 PM
Greg Newburn said...
What we're missing in this is the only thing that matters, both in court, and in morality. And that, of course, is the non-aggression axiom. The non-aggression axiom, in a nutshell, says, "No one may initiate aggression."
Isn't that all we need to solve these problems? Just think of the government as a band of thieves, and every relevant question of law and politics falls neatly into place.
What's wrong with you people?
Thu Oct 26, 01:04:03 PM
