Many of my First Amendment “fellow travelers” try desperately to show why every defamation suit is bad, wrong, and baseless. It’s understandable why they approach such actions with a strong bias against such suits, as they serve to censor, or at least, chill free speech upon fear of being held liable. As a general precept, it’s fair to approach defamation actions with skepticism.
But that doesn’t mean that defamation doesn’t happen and that some suits aren’t extremely well grounded. Take the case of Ruby Freeman, an election worker who had the grave misfortune of being named by Gateway Pundit as having committed “voter fraud on a MASSIVE scale.” She did nothing wrong, but nonetheless became the target of hate and ruin by a right-wing mob of flaming nutjobs. Not that Gateway Pundit cared.
Not surprisingly, Freeman’s life turned upside-down. “We know where you live, we [sic] coming to get you,” was one of many threats she received, according to her litigation complaint. Strangers camped out at her house, knocked on her door, harassed neighbors. She bought security cameras and deactivated the social media accounts for her business. On January 6, 2021, the day of the U.S. Capitol insurrection, the FBI recommended she evacuate her home. She did not return for two months.
What is Freeman to do about it?
With the help of a new legal aid project, however, Freeman and Moss are breaking that pattern by suing Gateway Pundit for defamation. (They’re also suing One America News and Rudolph Giuliani in a separate action.) That project—called Law for Truth—could have interesting implications for super-spreaders of toxic disinformation.
Launched in December by Protect Democracy, a nonprofit group in Washington, Law for Truth creates a pathway for victims of political libel to fight back. It’s based on the observation that traditional defamation actions have been one of the few ways of holding purveyors of fake news accountable .
It was almost certainly defamation, and it’s not as if Freeman had the financial wherewithal to mount a defense or go after Gateway Pundit, so Law For Truth, a sort of legal aid for political defamation. stepped into the breach.
“Yet, as effective as defamation suits were when they were deployed, very few were filed relative to the sharp uptick in injurious defamation,” Ian Bassin, Executive Director and co-founder of Protect Democracy, told me. The underenforcement of defamation law is a kind of market failure, he argues. Law for Truth provides a remedy by “essentially creating a nonprofit plaintiffs’ bar focused on ensuring accountability under the law” for defamatory political disinformation.
This isn’t a new concept, per se. Others, such as FIRE, the Institute for Justice, and back before it was captured by illiberal authoritarians, the ACLU, served as litigation resources for those who needed and deserved the fight, but couldn’t mount it without the help of organizations dedicated to a cause. Each has its niche, and as a concept, Law For Truth saw a gap as political disinformation began targeting random innocent people to be their posterboys for public hatred and destruction.
But it’s not without risk.
Traditionally, civil-liberties advocates have cast a wary eye on defamation actions. All too often, litigation—actual or threatened—has been exploited by powerful interests to harass journalists and intimidate critics. Donald Trump is no stranger to this tactic, having promiscuously threatened to sue his critics both before and during his presidency. Taking journalists to court is a tried and true weapon of authoritarians.
Whether suit for political defamation is brought by angel or demon is naturally connected to politics. If someone is suing the other tribe, the suit has merit. If not, it’s a SLAPP suit. And then there’s the two-way street problem.
“We have to keep in mind that whatever tools we create are going to be used by people whose cases are not quite as strong,” Walter Olson, a litigation expert at the Cato Institute, told me. “We need to think about what happens when people put together large financial kitties to sue in the other direction. Think about ten years from now, once it’s been fully accepted to raise money by saying, ‘We’ve got a list of media outlets we can destroy using litigation.’ It will be used to beat up on some small publications or writers who don’t have very good means to defend themselves.”
If one side can crowdsource crushing litigation, so can the other. Is there any limiting principle that will make this serve the public good?
To avoid this danger, it will be important for initiatives such as Law for Truth to stay within the boundaries of existing defamation law, not stretch those boundaries with novel or expansive claims. “The two women in the Gateway Pundit suit have almost the paradigm of a defamation case,” David French, a writer, lawyer, and Persuasion advisor who formerly led the Foundation for Individual Rights in Education, told me. “The simple fact of the matter is that we do have large-scale, harmful lying that puts Americans, in some cases, in fear for their lives. The law has always had mechanisms for responding to that. The institutionalization of efforts to protect individuals who otherwise might not have resources to defend themselves is an important development.”
To be fair, the author of the Persuasion post, Jonathan Rauch, is not a lawyer and so may not realize that this says essentially nothing and offers no limitation on the potential for abuse. There are real defamation cases. The problem is distinguishing which is real and which is abusive, and the problem then, particularly for political defamation, is that there is little agreement on facts, as evidence becomes secondary to ideology and sophistry.
Litigation thus needs to focus on defending individuals who suffer concrete reputational damage from false and malicious claims: the Ruby Freemans and Shaye Mosses of the world. Unlike professional politicians, ordinary citizens like election workers don’t sign up for the rough-and-tumble of public life, and they shouldn’t be chilled or intimidated by malicious personal destruction.
As has become common in the rhetorical device of using anecdotes to make a point and manipulate the sensibilities of readers, what happened with Freeman and Moss was terrible and wrong, but that tells us nothing about others and other cases. Unfortunately, the only real answer lies in the integrity of the organization rising to meet the challenge. According to Law For Truth, it stands for “democracy.” Don’t we all.