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Can Defamation Suits Be Used To Stifle Free Speech?

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 in a DUI arrest.

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 a 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.

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.

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

Goldfinch Winslow | © 2021 | 843 .357 .9301