Anyone who has ever worked at a newspaper or in the news department of a radio station should have a clear understanding about the rules concerning libel. Boiled down to its most simple elements, anyone with a publication or an audience is well-advised to follow this easy guideline.
“If it puts a person in any kind of negative light, if you can’t prove it, don’t print it, don’t say it.”
Truth is an absolute defense to libel. If you write that John Wayne Gacy murdered many, many young men, that is a provable fact, established in a court of law. If you write, “Alexander Abercrombie murdered many, many young men,” you’d better be able to prove that. It used to be that “opinion” was considered a defense. As in, “In my opinion, I think Alexander Abercrombie killed many, many young men.” However, the Supreme Court has pretty much wiped away the “opinion” defense in their Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ruling, which stated that a defamatory allegation stated as opinion can not be defended if the truth or falsehood of the opinion could be determined in a court of law. In effect, if one were to write that our example plaintiff, Alexander Abercrombie was a murderer, and claimed it as opinion, it would not be defensible as it was moot whether it was intended as opinion or not since it asserted a matter of objective fact.
Another thing one hears bandied about these days is that someone may be considered “defamation-proof” or “libel-proof.” That means the object of the defamatory statement is held in such low esteem that nothing anyone could say would lower that person’s standing in the community. This may be true for people like John Wayne Gacy, who would have trouble (were he alive) getting a defamation judgement against someone who wrote that he had poor oral hygiene when his tooth-brushing acumen was legendary. But say, for instance, Mr. Abercrombie did time in prison for a crime unrelated to the defamatory statement. Say Mr. Abercrombie had been convicted of a number of crimes even. Once Mr. Abercrombie has “done his time” and is endeavoring to become a productive member of society, care must be taken by the writer or speaker to assure that any statement that casts Mr. Abercrombie in a negative light is accurate. If Mr. Abercrombie had done a couple decades in the big house for embezzlement, one is within the bounds of fairness by referring to him as “convicted embezzler Alexander Abercrombie.” One could safely write, “Why did the bank give such an important position to the convicted embezzler, Alexander Abercrombie?” But if a person is not truly defamation- or libel-proof, such as Mr. Abercrombie, one is not free to say or print whatever one cares to say or print because of a prior conviction, or any number of prior convictions. One can not write or say, for instance, Mr. Abercrombie is a convicted domestic terrorist unless he was, in fact, convicted of domestic terrorism. Your opinion on what constitutes domestic terrorism notwithstanding. That is a legal distinction, and if a person has not been convicted of a particular crime, you are treading in libelous waters to say or write that he has been convicted of such. Also, in order to be defamation- or libel-proof, the person’s infamy must be well-known and fairly universally-established. Everyone pretty much knows who John Wayne Gacy was. Mr. Abercrombie’s crimes, however, are only known by his political enemies who have made it their business to spread as much hatred in their blogs and broadcasts about Mr. Abercrombie. If you were to stop the average person on the street and ask their opinion of John Wayne Gacy, you would likely get a pretty standard response. If you asked about Alexander Abercrombie, chances are that unless the person was a devotee of the blogs or broadcasts that have been writing or saying things that cast Abercrombie in a negative light, the person one asks will likely have never heard of him.
So much for libel-proof. Because YOU hate someone and all your friends hate that person does not mean that person’s reputation in the community at large is so low that any lie one cares to tell would not serve to harm Mr. Abercrombie’s reputation.
So, that leaves one with “truth” as an absolute defense. We’ve determined Mr. Abercrombie is not “defamation-proof” because the infamy of his past crime is not all that well-known outside a circle of professional hate-mongers. We’ve determined that the Supreme Court has held stating something as “opinion” is not a defense, if the “opinion” is a matter that could be established as true or false in a court of law. Besides, there’s the presence of malice — easily shown in the writings and broadcasts of the people who have turned Mr. Abercrombie into a cottage industry for fund-raising. Mr. Abercrombie is not a public figure as he works behind the scenes in his industry, doesn’t blog or “tweet,” and even if he were a “public figure” as that is defined, if malice can be shown, an untrue defamatory statement is still actionable. One is in peril of a serious libel judgement by saying or writing that Mr. Abercrombie killed someone when it is not true — even if a civil court held Mr. Abercrombie “responsible” for the death, that is not the same as “killing” the person. If I leave banana peels on the sidewalk out of negligence and someone slips on one, cracks his skull and dies, I can and should be held “responsible” for his death. But that does not translate into my killing someone, and one would be subject to a libel suit to call me a “murderer.”
Therefore, we have established what I set forward at the outset of this entry. If you are going to write or say something that casts someone in a negative light, you had best be able to prove it. Otherwise, don’t say it, don’t write it.
If someone has not been convicted of having sex with a child, or diagnosed with pedophilia, do not call that person a pedophile. You will lose that battle in court.
If someone was convicted of a series of bombings and a person injured in one of the bombings took his own life years later and a civil court held the bomber “responsible” for the person’s death, don’t call that person a “murderer.” You will lose that battle in court. Do not call him a “domestic terrorist” unless he has been convicted of domestic terrorism. You will lose in court. Do not say that a person was responsible for or otherwise directed “SWATtings” unless you have solid proof, because that is defamatory, and you will lose in court. Do not call someone an “alleged” anything unless he has, in fact, been charged with a crime. You do not get to assign the allegation and then refer to the person as an “alleged” anything. Do not attempt to cause the temporarily estranged wife of the person to perjure herself in court. You will be found guilty of a variety of torts, including intentional infliction of emotional distress. Do not make defamatory statements under cover of a pseudonym. The person you are defaming has the law on his side and will determine your identity and sue the silk panties off of your hiney.
In the cases filed by Brett Kimberlin, the defendants are saying they are being sued for telling the truth about Mr. Kimberlin. Folks should read the complaints. No where does one find Mr. Kimberlin raising the issue that the defendants are being sued for referring to his past convictions. He is suing them for calling him a pedophile, for calling him a murderer, for trying to entice his wife into perjuring herself to support their claims. He is not suing these people for telling the truth. In fact, if what the defendants were alleging was provably true, these cases would have been dismissed by now.
The challenge facing the defendants is to prove that they did not have malice in their hearts when they wrote or said or promulgated or transmitted the untrue, defamatory statements. They will have to establish that they had reason to believe the truth of the allegations, and that reason must be “reasonable.” That is to say, not because they read it in a book, not because a blogger they respect said so. There must be a logical basis for this belief.
Otherwise, the judge or jury will likely find you guilty of defamation. And that, “gentle reader” is a fact that is not disputable.
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