By Cliff Montgomery – Aug. 30th, 2017
“…People should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else … [but] a person that has suffered a defamatory statement may sue the person that made the statement under defamation law.” – Defamation Law: The Basics, from FindLaw.com
It’s true that there are a lot of things in the U.S. political arena that are up for debate. But at least since World War II, legitimate politicians of every stripe have consistently offered a forceful rejection of fascism.
That has ended with Donald Trump.
The generation who fought in World War II saw firsthand just how fascism destroyed the countries it infested. Democracy, decency and human rights ceased to exist under every fascist regime.
Of course, fascism comes from somewhere. It is a movement that tends to raise its head when a country’s economic system has been failing large numbers of its people for a while, and when political institutions no longer reflect the real needs or opinions of the public those institutions claim to serve.
And as historian Robert Paxton pointed out in his book The Anatomy of Fascism, “classical fascist themes” also include “fears of decadence and decline, assertion of national and cultural identity, [and] a threat of unassimilable foreigners to national identity and good social order,” as well as “the need for [an ever] greater authority to deal with these problems.”
One other thing: When fascism gains ground in a constitutional or democratic nation, the movement often works to turn the country’s ideals upon themselves.
For instance, fascists will declare that a nation that promotes personal liberty must allow individuals to actively destroy those liberties (or at least allow them to destroy the liberties of other people who do not belong to their group).
Likewise, they often insist that a practice of free speech must allow individuals to intimidate, threaten and spread destructive lies about any person or group those individuals deem unlikable.
Most people realize that U.S. democratic ideals demand the rejection and even punishment of deliberate intimidations and outright threats.
Far fewer recognize that the lies fascists routinely spread about others unlike themselves may well be considered an act of slander – an action that is illegal under U.S. law, and thus certainly does not qualify as ‘free speech’.
As the above quote from FindLaw makes clear, a person is free to say in public whatever they wish about a person if the statement is true.
We at the Spark also believe that a person is free to express themselves to other like-minded people, as long as their statements are not intended for public consumption. Certainly people must be allowed to express themselves as they wish in the privacy of their own homes, or indeed in any conversation clearly meant to simply be ‘among friends’.
Likewise, it’s highly doubtful that a member of the general public would ever attend a Klu Klux Klan meeting or spend their time engaged in a fascist website. Such activities may be hateful to most of us, but fascists have the same rights to assemble and to declare mere opinions as every other group of people.
“Under the First Amendment, there is no such thing as a false idea,” the Supreme Court once declared. But under U.S. law, there is such a thing as defamation.
Thus the moment these fascist groups engage the general populace through marches or public speeches, things change. ‘Going public’ means that the fascists must consider not only their own rights, but the rights of other people to be free from false public statements meant to destroy their reputation.
And it appears that U.S. courts have gone some way to spell this out.
As far back as at least the 19th Century, U.S. courts often have found that defamation may occur against entire groups of people. In Kansas v. Brady (1890), the court declared:
“The law is elementary that a libel [roughly, slander in written form] need not be on a particular person, but may be upon a family or a class of persons, if the tendency of the publication is to stir up riot and disorder, and incite to a breach of the peace.”
And then there is the famed case Beauharnais v. Illinois. In 1950, Joseph Beauharnais – who at the time proudly served as president of the White Circle League of America in Chicago – was arrested for distributing leaflets which called upon city officials “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.”
“If persuasion and the need to prevent the white race from becoming mongrelized by the Negro will not unite us, then the aggressions … [of] rapes, robberies, knives, guns and marijuana of the Negro surely will.”
This went against an Illinois law which outlawed the distribution of any “publication or exhibition [which] exposes the citizens of any race, color, creed or religion to contempt, derision or obloquy [i.e., defamation] or which is productive of breach of the peace or riots.”
Beauharnais sued the state. He insisted his rambling leaflet was not a case of group libel, but instead constituted free speech as protected under the First and Fourteenth Amendments.
But the trial court declared otherwise and found Beauharnais guilty. He appealed the decision to the Illinois State Supreme Court – he lost there as well.
In 1952, Beauharnais took his case to the U.S. Supreme Court. In a 5-4 decision, the Court ruled that the dissemination of Beauharnais’ race-baiting leaflets constituted an act of group libel.
Though subsequent Supreme Court rulings have narrowed the scope of the 1952 decision, Beauharnais v. Illinois remains the law of the land.
The largest potential limitation on what legally constitutes group slander or group libel? The argument that an otherwise slanderous statement may be considered a mere overstatement that cannot reasonably be expected to refer to every member of the group.
LawShelf.com offers this succinct example:
“Rob Ryan, a reporter for a sports magazine writes that ‘all athletes are drug abusers.’ In such a situation,” declares LawShelf, “no individual athlete can bring a cause of action for defamation,” simply “because the group that is defamed is so large that the statement cannot be reasonably interpreted to apply to any specific person.”
Small groups – say, of about 25 people or so – appear to have a much better chance of successfully suing for group slander or group libel.
But what if it is clear that the statement in question is without a doubt referring to every single member of that group, in equal measure? At first glance, that legal matter appears to be less clear. Stay tuned.
