Reply #183: the law of defamation is DESIGNED to CHILL discussion of a certain kind

[Land Shark]

I'm not evaluating specific facts in this thread because I don't have a client and if someone lived out of state i may well have to have local counsel to get involved.

But the reasoning process that applies to EVERY case of this type goes like this:

1. To be part of a lawsuit is to lose (forces you to hire a lawyer, lotsa money and time) and you generally don't recover your attorneys fees spent on prosecution or defense, so it's money down the drain for both sides (could be different in some states)

2. So, to be sued is to Lose in my book, regardless of the result of the case. But, if the thought of dropping 50 to 100K and getting a piece of paper that says you were right a year or two later is acceptable to you, then #1 may not fully apply to you.

3. Plaintiff goes first, and things said here accuse of criminality such that the reasonable person would say they are defamatory most likely. Plaintiff wins, subject to defenses.

4. The Defense would be the truth defense. The burden is on the defense to prove that truth. The battle is to unwind all the proof and damage that comes from #3.

5. There's no upside for the defense other than the piece of paper above, it's very unlikely the case would be deemed frivolous, it's more like a good case subject to a strong defense, if the defense is deemed to win. One has a right to file a case and lose, that's why every loser is not automatically a frivolous case.

6. Basically my philoosphy, and i chaired a committee to this effect with a bar association, is that in many cases ALL parties to a lawsuit are losers in the end if they take it all the way. The committee was all about finding alternatives to litigation. But any such alternative has to lead to resolution (clearly no resolution is in process for these subjects)

There's "chillling speech" which is deterring it beforehand, and then there's the proper procedure where rights such as free speech are involved: allow the speech to proceed and then if there is illegality, sort it all out in a subsequent (defamation) lawsuit. By pointing this out I am by no means trying to chill anyone's free speech, but the law of defamation DOES mean to chill people out from saying false things that hurt others.

That should be enough to anger both sides, since, just as I did with my views of democracy and inclusion, i've set forth the principles I think are applicable, and I leave it up to others to apply the facts as they see fit.