Is “Law For Truth” The Solution To Political Defamation?

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.

 

7 thoughts on “Is “Law For Truth” The Solution To Political Defamation?

  1. Colin Samuels

    It’s certainly no guarantee of integrity, but established organizations like FIRE and IJ do serve a valuable function in this process. The articles focus more on the funding and focus of these efforts — broad fundraising for defense of individuals targeted by individuals, organizations, and crowds. But this institutionalizing of individual defense tends to make better law over time, I think. Well-funded organizations staffed by experienced legal specialists and managed to focus on the best cases to make an impact and advance the cause ensure that when decisions are made at higher judicial levels, the record in those cases is as strong as can be and like-minded organizations are enlisted to support the effort. Too often, under-resourced plaintiffs, inexperienced counsel, and bad facts conspire to make bad law that affects everyone. This may be a marginal improvement, but those margins matter over time.

    Reply
    1. David

      Is established orgs do what you believe to be good, then they’re good. If not, then they’re not. And even if they were good once, they not be good the next time. Most orgs see themselves as doing “good,” which is why they’re doing whatever they’re doing.

      But does an org that doesn’t stand for principles, but “truth” and “democracy” do good? Only if you like their flavor. I think Scott’s point is that they certainly seem to be on the “good” side here, but it’s entirely up to them to decide what truth they want to back in the future. As will be the case for any adversarial truth orgs that oppose them.

      Reply
      1. Colin Samuels

        True, “good” is always going to be inherently subjective. My view was more that established organizations, having a base of donors, a track record, a legacy they wish to protect, a reputation with the key judicial figures (perhaps), and so forth, have more “skin in the game” around divisive issues. They are prepared, funded, and focused on an area of law rather than a particular matter.

        A rich guy might feel butthurt over someone’s comment and sue (oh, how we need a national SLAPP law, but there’s another matter); said someone, overwhelmed on his own, might manage to GoFundMe enough to manage a defense, even prevail, but because the parties are one-and-done with this particular litigation, they have no stake in the outcome other than winning. A horrible judicial opinion which gives the win to the “right” party is nevertheless a horrible opinion with potentially broader consequences.

        I would suggest that even opposition groups which are not seeking to do “good” by my subjective standards would still make better law in the end because they’re focused on the larger issue raised by the controversy at hand. Because they’re not doing good by my standards, I’ll hope they lose, but over time, win or lose, the outcome will help to build the law rather than simply ending a dispute.

        Reply
  2. Jacob Williams

    With respect to Colin Samuels above, the ACLU likely thought as highly of itself as Law for Truth does. The problem is, it still does.

    Crowdsourcing litigation already has dubious roots, since the Bollea v. Gawker case in which Peter Thiel threw ten million at any plantiff suing Gawker, including Bollea (more commonly known by his stage name, Hulk Hogan), likely just to see Gawker buried under legal costs; they’d run a story about his sexuality six years before that . Gawker itself was far from anything I’d consider virtuous, and both articles are tawdy rumormongering, but the concept of other interests bankrolling superfluous litigation just to inflict costs on a defendant is not a future I’d like to see, and I don’t doubt once defendants start openly looking for outside counsel, plantiffs will start casting eyes as well. It works both ways, I’d think.

    [Ed. Note: If you want to reply to Colin, you could always use the “reply button.]

    Reply

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