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How Defamation Suits Are Used to Stifle Free Speech

Ryan McMaken
June 8th, 2021
The Mises Institute
Comments (12)

This article was originally published by Ryan McMaken at The Mises Institute. 

The average American can be forgiven for assuming that he or she can freely criticize the government and government personnel without fear of being sued by the government for libel or slander. This is indeed true most of the time. But it doesn’t mean that government agents with hurt feelings won’t sometimes try suing private citizens who have the temerity to criticize how government bureaucrats do their jobs.

Such was the case earlier this spring when Louisville Metro Police officer Cory Evans filed a lawsuit against the “DUI Guy”—an attorney named Larry Forman who has a YouTube channel—for defamation after Forman accused Evans of planting evidence.

As Louisville’s WDRB reports:

Forman posted body camera footage to his YouTube channel from a 2018 incident where LMPD Officer Cory Evans searched a man’s vehicle following a suspected DUI. The video depicts officer Evans and another unidentified officer searching the vehicle for alcohol. Evans looks in the center console without finding anything, but the video jumps forward to the view of the other officer, who opens the console and finds a bottle of liquor minutes later.

While I don’t agree with Forman when he concludes, “The video speaks for itself,” Forman’s conclusion is nonetheless quite plausible. In other words, the body cam video footage makes it easy to see how Forman could sincerely believe that Evans did indeed plant the evidence. That is, Forman may have simply been stating what he believed to be the truth.

Now, Evans’s attorney claims the accusation “has hurt the reputation of the LMPD officer” and the suit is seeking damages.

Let’s hope Evans loses and loses big.

Defamation as a Means to Silence Critics

The problem of a police officer suing a community member for an accusation of abuse helps illustrate one of the central problems with defamation lawsuits: they can be used by powerful people to silence critics.

In the United States, we are fortunate that it is quite difficult to win a defamation lawsuit. Generally speaking, in American courts, plaintiffs claiming damages from defamation must prove actual harm as well as intent to harm. The plaintiff must also prove the defamatory comments are false.

The difficulty of winning a defamation suit under such circumstances helps discourage countless defamation lawsuits. Thank goodness.

Alas, in other parts of the world, this is not the case, and we find many cases of government agents suing or prosecuting citizens for defamation. We even find wealthy and powerful private citizens suing critics, even when those critics are apparently stating what they believe to be facts.

The potential for abusing defamation law helps illustrate, yet again, the wisdom of deferring to “freedom of speech” as a dominating legal principle, and as the philosophy behind the US government’s First Amendment. The presumption should be overwhelmingly in favor of the freedom to speak freely, as efforts to limit speech in the name of protecting reputations presents many opportunities for the abuse of government power.

In all times and places, of course, agents of the regime prefer to silence their critics if they think they can get away with it. Historically, regimes have employed many strategies, such as blasphemy laws, or have simply outlawed criticism. But, as The Economist has reported,

All these approaches attract international criticism. So some governments turn instead to defamation laws. Defamation is recognised almost everywhere as grounds for a civil claim, in which subjects of wanton and damaging falsehoods can demand financial compensation. But when defamation is a criminal offence, governments can go beyond fining critics who have caused demonstrable harm, and imprison them simply for speaking. Though several countries have recently decriminalised defamation, many more still prosecute it zealously. And even where it can no longer lead to jail, charges can stifle criticism if courts award vast damages.

Fortunately, in the United States, where defamation are suits are generally difficult, it is especially difficult for government personnel or government agencies to sue for defamation.

This has been true for many decades, and this tendency toward skepticism of government-initiated suits was greatly strengthened in the American courts in 1964 with the Sullivan ruling, in which the US Supreme Court concluded,

For good reason, “no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.”

In the UK, on the other hand, protections against defamation suits have been far weaker, even in regard to suits by government agencies. Only in recent decades, for example, has the UK turned toward heavily and explicitly restricting government suits against critics.

Use by Private Parties to Intimidate Critics

Invoking the government’s courts to cover “damages” can be used in the private sector to silence one’s opponents as well.

In the United Kingdom, where defamation laws are far more extensive than in the United States, we can find cases of defamation suits used to gain commercial and political advantage.

For example, when a plastic surgeon expressed doubts over the efficacy of a “breast-enhancement” cream, the cream’s manufacturers threatened the surgeon with legal action.

In another case, Saudi businessman Khalid bin Mahfouz sued a researcher who publicly concluded that Mahfouz had given money to al-Qaeda.

Such lawsuits would be quickly dismissed in the United States, but in the UK, matters are different. As NPR has reported:

“Crooks and brigands from around the world come [to the UK] launder their reputations, where they couldn’t get exculpation in either their home country or indeed in the United States of America,” says Mark Stephens, a London lawyer who often represents media companies in these cases…. In American courts, the burden of proof rests with the person who brings a claim of libel. In British courts, the author or journalist has the burden of proof, and typically loses. “So you’ve got the rich and powerful shutting down and chilling speech which is critical of them,” says Stephens.

Of course, the fact that it’s very hard to win defamation lawsuits in the US doesn’t mean no one ever threatens them. Donald Trump, for example, is notorious for threatening defamation suits against critics. This dates back to well before his years as an elected official or presidential candidate. In 1984, for example, Trump sued architecture columnist Paul Gapp for making fun of Trump’s plan to build a two hundred–story skyscraper in southern Manhattan. Trump claimed Gapp’s remarks caused Trump $500 million in damages.

Trump has tried many similar suits, including a suit against a writer who said Trump wasn’t really a billionaire in 2006.

Trump sued one of his own Trump University students in 2010 over the student’s criticism of the school’s business practices.1

Thanks to the US’s laissez-faire attitude toward defamation, these cases were dismissed relatively quickly, although not without first causing his victims many sleepless nights and legal fees.

One can only hope that the lawsuit brought by Cory Evans of the Louisville Metropolitan Police Department receives the contempt that it deserves from the courts.

After all, government agents and agencies already exercise far more power over their fellow citizens than is the case for average people. The last thing we need is for these agents of the regime to be able to threaten their critics with lawsuits for the act of merely saying things.

Police officers and other government employees who don’t like being subject to public criticism can always resign their positions and become ordinary private taxpaying citizens.

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    Author: Ryan McMaken
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    Date: June 8th, 2021
    Website: https://mises.org/

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    12 Comments...

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    1. Anonymous says:

      I’ve been to Europe..

    2. Andrea.Iravani. says:

      To the psychopaths that are terrorizing and torturing me, and to all of the lame government employees that I have notified at all levels of government and healthcare that are once again guilty of conspiracy, and yes, it is without question a conspiracy of willful ignorance, dereliction of duty, gross negligence, fraud, high crimes, crimes against humanity, and treason,  because when that many people are guilty of gross negligence and dereliction of duty, which you all are with what you have done to me, and also with the scamdemic, and 9/11, the seven false flag wars, and the unaccountable and missing $21 trillion from the Pentagon, it cannot be denied that it is a conspiracy to commit high crimes and treason! The media is equally guilty! Deny it until you are blue in the faces and just keep indicting yourselves on conspiracy to commit mass murder over the airwaves and in print media! Nature does not suffer fools kindly, as the saying goes! You are about to be in for the shock of your lives! It is only a matter of when and not if! 

      It is not just a conspiracy that a dozen, or a hundred, or a thousand people have engaged in! It is a conspiracy that tens of millions of people have engaged in with the scamdemic! You are wretched evil, useless, worthless, monstrous, self-serving, psychopathic parasites! 

      I don’t give a damn if you are offended or hurt by those statements!  It’s not about you! Who the fuck do you think you are?! All governmemt employees are supposed to uphold and defend the constitution, first and foremost, and all healthcare workers are supposed to place the needs of their patients above their own self serving financial greed by not engaging in quackery, charlatanism, snake oil practices, and medical fraud! 

      Torturing me is not going to change the fact that you are desperate retarded losers, so fucking desperate and retarded that you have convinced yourselves that the truth and reality are irrelevant, which means that you are by all accounts, out of touch with reality, and in total denial and in a state of completely delusional mania. Denial is part of your disease! Shit for brains! Absolute control freaks, and completely retarded, and there is no God damned fucking way that I will give control of my life over to anyone, especially retards that are completely full of shit like you! And how do I know that you are retarded? Because you have convinced yourselves that the truth and reality are irrelevant and are too God damned fucking lame to realize that that is a no win situation! You really do not have to be a fucking genius to figure that out !  

      Andrea Iravani

    3. Andrea.Iravani. says:

      Jared Kushner announced that he wants to simplify his relationship with the Donald and has implied that he will be spending less time with the Donald because Kushner wants to dis-engage from politics while writing his mempires about politics.

      Trump should retire from politics completely. He has already done tremendous harm by treating the government, presidency, and national and foreign policies as a third rate reality show, which is hardly surprising for someone that actually starred in a reality show.

      Shame on Lindsey Grahm and Ted Kruz for thinking that any political party cannot win without Trump! Why would they say that? In order to keep his criticism at bay most likely, and there is certainly a tremendous amount to criticize both of them for! Suddenly the dick heads involved in sponsoring the Steele dossier think that they cannot win without Trump? Trump should sue them, Fusion GPS, the Washington Free Beacon, the FBI, and the DNC for defamation of charcter! It would be a really easy case to win, in my opinion, and since this article happened to be about Trump suing for defamation, that would not be in the realm of frivolity at all, like the others mentioned in this article!

      Andrea Iravani

    4. FreemanSteed says:

      The article goes from an NPR quote …right into ” it’s Trumps fault”….
      Theres a real shocker.

    5. Quick Learner says:

      Women love the present political and legal systems. These systems are designed specifically to entrap and enslave men, and are utilized to take men’s income and limit their rights and freedoms, to generally disempower men. Women really don’t care about a system of justice, or freedom, or even real equality and fairness. Rather, they more so desire privilege, status, and material assets, I’ve seen it over and over again.
      The worst liars and defamers are white women, most of them just disgust me. I’m a white guy, I own a very nice home in a semi-rural area, I own some property, have investments, and all my man toys. I’ve had more girlfriends than one can count and even been proposed to (but have never proposed to a woman). I had a vasectomy several years ago and it has saved me from paying child support.
      My experience is that women are mostly users, and easily predictable. They ask about my assets and security, and I can see the wheels turning in their heads, even on the first date. Many of them are in their 30’s and looking for a husband. They rode a lot of d*ck over the past 10 plus years, and had a good time, but now that their youth and attractiveness is fading they want to find a husband who they can milk and take advantage of. I asked one of them what would she bring to a marriage, she said children. I said I don’t want children, and asked what else does she have to make a marriage to her worthwhile. She couldn’t think of anything else. I told her she would be a terrible choice and had nothing to offer any smart guy.
      What I find really funny is that every woman I dated thinks she has something other women don’t have, and that each one believes she is a real catch. No, I’m not going to pay your college debt, or pay to take care of your kid, or rescue you from your cubicle job and little apartment in town, or have a child with her now that she has the DNA of dozens of other guys swimming around in her body.
      The average woman will happily employ the legal systems and the power of the courts to extract anything she can from you if she can. Don’t marry, don’t have a kid, don’t let her move in with you, don’t give her your house key, nor allow her to drive your vehicles, and don’t have any kind of joint account with her. All these give her kinds of legal entitlements. It will only end in grief for you. Marriage is a tool of the state to use against men to deplete your resources and diminish your rights. Keep your relationships informal and casual, you’ll keep your wealth and your freedoms and your power.

      • Darth Skippy says:

        QL said, “I had a vasectomy several years ago…”

        You have my condolences, but this sounds very disempowering from the standpoint of a men’s rights activist.

        • DS – No need to offer me any condolences, am doing better than the vast majority of people. I am empowered; go where I want, do what I want, live how I want. I don’t explain or justify anything to anyone, don’t have to put up with any BS, and responsible only for myself. When I feel the relationship has played out I literally just tell them it’s over and move on. Am the master of my life, can’t say that about married betas. My brother, who is a pilot, is the same as me.

      • Rock says:

        Marriage and kids are life CHOICES.
        NOONE is physically forcing anyone to get married or have kids.
        If you don’t want to get married or have kids don’t do it.
        Yes, it really is that simple.

      • Darth Skippy says:

        Compare vaccination side effects to Isaiah 3 and 4.

    6. Anonymous says:

      Seen the border & ate at the local El Bean also. Had the #4 combo.

    7. Darth Skippy says:

      Here is an interesting lesson in objectivity.

      We are finally asking whether some alleged crime has caused any damages.

      Has the driver with an open bottle on the console caused any damages.

      Has your accuser in court caused any lost pay or itemize-able, financial inconveniences.

      If a critic caused a serious building project to fall through, has he caused any damages?

      When ridicule is being used as terrorist Alinsky tactic, free speech should be criminalized. The world is full of ephemeral people, with nothing useful to bargain, who want to enrich themselves from your financial or social largess.

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