I fundamentally disagree with the way a lot of rationalists are treating the threat of legal action. The legal system is a failsafe to ensure means for protection against serious misbehavior. Based on this post, I think Nonlinear is correct to assert that several of the claims in the original article were false and likely libelous. Legal action in response to libelous claims aimed at destroying your reputation in your community is not escalatory, it is proportionate, and a threat of it should be a reminder that the situation is serious, not treated as casus belli to publish any and all information.
I think that the threat to sue could have been okay if there were significant errors in Pace’s piece, but what are they? What specific phrases do you think are likely libelous.
To me, the threat to sue over minor inaccuracies, usually clearly marked as “Alice said” etc and given Alice was described as an unreliable narrator, seems like a bad norm and one I want to push back against.
Also I think the legal system is really dysfunctional. It seems that Nonlinear was creating an environment where it was hard to report accurately about them and to sue people who write articles like this would, I think further that, whether they would win or not. They have that right, sure, but respect them less for the threat, especially given, personally the article itself doesn’t seem to allege awful behaviour in my view.
As the publisher, Ben has a duty beyond simply uncritically repeating a source’s claims, if he knew or had reason to know those claims are materially false—including not taking reasonable steps to verify truth. The claim about being asked to transport illegal recreational drugs across a border is the most immediately clear one to me. Nonlinear told him it was false, had screenshots available to the contrary, and he published it. Whether he preceded it with “Alice says” makes little difference in terms of either moral or legal responsibility.
I respect that you don’t see the allegations as awful, but it looks like they had a dramatically negative effect on the reputation of the organization as a whole. The bar for writing something that has dramatic negative effects on someone’s reputation is and should be high; the court of public opinion is no better or more functional than the court of law.
It seems fundamentally inaccurate to me to treat lawsuit threats as an escalation to the decision to publish something that will destroy an organization’s reputation within their own community. Whatever the merits of any specific suit, those are equally adversarial decisions and the one is a proportionate response to the other, not an escalation.
Pace reports Nonlinear said they did ask for people to bring illegal recreational drugs over the border for them. Have they claimed he was lying when he reports them here:
”Third; the semi-employee was also asked to bring some productivity-related and recreational drugs over the border for us. In general we didn’t push hard on this. For one, this is an activity she already did (with other drugs). For two, we thought it didn’t need prescription in the country she was visiting, and when we found out otherwise, we dropped it. And for three, she used a bunch of our drugs herself, so it’s not fair to say that this request was made entirely selfishly. I think this just seems like an extension of the sorts of actions she’s generally open to”
Again, I don’t care about this much, but Pace can’t be accused of not following the facts if Nonlinear said they did something very similar to the thing they are accused of on another occasion, right?
Pace says “I bring this up as an example of the sorts of requests that Kat/Emerson/Drew felt comfortable making during Alice’s time there.”
Pace reports Nonlinear as saying “I think this just seems like an extension of the sorts of actions she’s generally open to”
Looks pretty similar to me. Sometimes people take drugs across borders. That’s on them, but if you’re asking employees to do it, then that’s the kind of thing you ask employees to do.
My understanding is that they are addressing the same event (pharmacy for antibiotics and ADHD meds) in all locations, and they make it clear in his post they dispute every part of his frame about that event, including his presentation of their response as basically agreeing with him.
I’m not sure the value in focusing on a specific story when I’m making a general behavioral claim, though. My stance is this:
If (1) you inform someone that you are going to publish something that will be severely detrimental to their reputation and (2) they assert you are making several materially false claims in that publication, claims they have hard evidence exist, then (3) it is unreasonable not to wait to review that evidence, and (4) a libel suit is proportionate, not escalatory, in response to the actual publication of falsehoods that severely damage someone’s reputation.
From those, it follows that warning of a potential libel suit in advance of publication should absolutely not be read as “I am being unreasonably threatened and therefore should publish immediately to stand up to bullies.” It should be read as “I am entering a serious, mutually adversarial situation and I should be absolutely sure, to the best of my ability, that I have my facts straight.” The initial seriously adversarial decision is the choice to publish allegations, not the choice to sue. Both can be correct or incorrect depending on specific circumstance.
The decision to publish immediately, and your endorsement of that decision, is a bad misread of the situation—not defecting in response to defecting, but carelessness bordering on malice in an already adversarial context—and one that causes predictable harm should any allegations be materially, provably false.
I’ve been threated with legal action once (by Jay Z’s record company for a parody I made) and it felt like a bet. I probably could win if I spent a lot of money, but I didn’t have that money and so I took the song down.
“I’m going to expend both of our time and cause huge amounts of damage” happened upon publication of the initial allegations. It was guaranteed to happen upon publication of the initial allegations. It was, in simple fact, the expected result of the initial allegations.
The original post was a weighty decision and if you post it there has better be a serious reason. A legal case is procedurally more weighty than inflicting massive reputational damage on someone in their own community, but it’s not clear that it’s morally more weighty, and treating it as escalatory feels like a category error no matter who you think wins the overall “bet” between Ben and Nonlinear.
Sure, but I think that Ben win’s that bet. To me it looks like the reputational adjustment he sought was worth it.
The libel case, not so much.
And I think the libel case wastes a huge amount more resources and currently it doesn’t improve Nonlinear’s reputation. After the case, I guess, or reading this file I think I’m pretty static on before it.
“I’m correct in seeking to inflict enormous reputational damage on you, therefore you are unjustified in responding with a threat of legal action, and your threat of legal action justifies me refusing to proactively examine promised exculpatory evidence” is the position I hear you endorsing, and I find it bizarre.
No! You can’t enter an adversarial frame, then object when people accurately treat it as adversarial and use their adversarial response as an excuse to avoid due diligence! That is not, or should not be, how any of this sort of investigative journalism works.
”I’m correct in seeking to inflict large reputational damage on you because I can back up my claims, but should escale with a threat of legal action without seemingly being likely to win it, your frivolous threat of legal action justifies me reducing my engagement with this process”
You’re right that I feel less certain of this. But I do think there is a difference between accusations you can back up and those you can’t.
I guess I don’t see it as adversarial to reveal the truth. I don’t sense Pace was being directed about this. The libel threat feels directed.
I guess I think you see the two parties as the the same in some key way. I don’t.
No. He knew he was operating on partial information; he knew they had a great deal of information they were willing to give him in a short time span; he had no way of evaluating the quality of the evidence they would give before they would give it. He was not justified in half-doing his job whether or not they were being unpleasant in response—a threat of legal action is emphatically not an excuse to avoid considering their evidence prior to publication or rushing publication unless it becomes clear they are unreasonably delaying. A week or two, in response to serious allegations, is not an unreasonable delay, and no matter the ultimate strength of their story he neglected his responsibility to proactively understand it.
When they asked for, and were denied, one week to compile evidence, I don’t think it’s reasonable to conclude much of anything based on the final response process taking longer.
It’s absolutely adversarial to reveal the truth if the truth is harmful to someone. It’s critical to distinguish between “adversarial” and “bad.” Choosing to investigate a group over a long period of time and then publish information to damage them is fundamentally an adversarial act. Not a bad thing, but for one who aims to practice investigative journalism, vital to keep in mind.
If your goal is to reveal the truth and not to inflict harm on someone, you should wait until you have all sides as thoroughly as you can reasonably get them, and not cut that process short when the party you are making allegations against responds with understandable antagonism—until and unless they refuse to cooperate further and have no more useful information to give.
I also want to add that I think the community in general has shown a mild failure in treating the legal action threat as evidence of wrongdoing even if the lawsuit would ultimately fail.
It is really bad to treat a libel suit threat as some horrible thing that no one “innocent” would ever do. It’s a form of demonizing anyone who has ever used or thought to use the legal system defensively.
Which if intended, seems to be fundentally missing what the point of a legal system should be. It is no doubt a problem that people with lots of power, whether it’s fame or money or whatever, are more likely to win legal battles.
But it’s also a way more truth oriented process than the court of public opinion. And many people who would have stood 0 chance of getting justice without it have gotten some through it.
Do such threats have a chilling effect on criticism? Of course, and that’s a problem, particularly if they’re used too often or too quickly.
But the solution cannot be “no one makes such threats no matter what.” Because then there’s no recourse but the court of public opinion, which is not something anyone should feel comfortable ceding their life and wellbeing to.
I think someone outside the community seeing this sort of reaction of people inside it being shunned, demonized, etc for threatening to use a very core right that they’re entitled to would likely find it… pretty sketchy.
Because it can easily be construed as “we resolve these things ‘in house,’ via our own methods. No need to get Outsiders involved.”
And man, it sure would be great if we had that sort of high trust effective investigation capability in the community.
But we really have not shown that capability yet, and even if we do, no one should feel like they’re giving up their basic rights to be a member of good standing in the community.
I think many if not most people in Emerson’s position, feeling like they were about to be lied about in a life-destroying way, had facts to rebut the lies, and were being essentially ignored in requests to clarify the truth, would think of legal action.
Whether they would be wrong in how easy it would be to win is a different issue entirely from that very (from base society perspective) normal view.
I think I agree with that. But I think legal action is a big escalation. If they’d said, “we asked for more time and didn’t get it” I think I’d have been a bit more on their side.
Or if it turned out the legal action was warranted.
Whether he preceded it with “Alice says” makes little difference in terms of either moral or legal responsibility.
Morally, I agree with you. Legally, I think you are not correct at least as pertains to US law, which has much higher standards to meet for defamation claims than most European countries. In the US, the truth of the statement is generally an absolute defense to liability. If I publish a story of the form “A says B committed a crime; B denies/disputes it”, then in general I would not have liability if A in fact said that, because my statement was true (though A might have liability, of course).
My understanding of truth as an absolute defense to libel (disclaimer: law student, not lawyer, and referring to hastily examined case law, not deeply researched understanding) is that it refers to the truth of the core statement, not the truthful replication of defamation. In other words, I believe you can still be liable for publishing “A claims X” when X is false and you had reason to know that, depending on the circumstances.
If people are interested in reading more about this, I think the thing to look into is “republication liability”, and in the US seems to be pretty unsettled, with some state-by-state variation.
It doesn’t look like a bare defense of “I wrote ‘Alice told me X’ and can prove that Alice told me X” is sufficient, but it also looks like just demonstrating that X is false is not enough. Some considerations, depending on where you are:
Did the author know X was false?
Did the author put sufficient effort into assessing the truth of X?
Was the author acting as a neutral reporter of facts?
Did the author know X was false? -- I doubt it, with the possible exception of not updating the post after receiving Spencer’s screenshots 2-3hr before publication.
Did the author put sufficient effort into assessing the truth of X? -- Probably not, since the general goal was signal-boosting the concerns and the final ‘adversarial’ fact checking was quite short (especially for any allegations first raised in the draft NL received right before publishing).
Was the author acting as a neutral reporter of facts? -- Probably not, since Ben’s post is pretty clearly trying to signal-boost a bunch of allegations about NL.
You could be right. I don’t practice in this area and thus don’t claim to have greater knowledge than you on this. I still disagree, but people should understand this is a sorta equal epistemic status disagreement.
The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something. You could run this by a lawyer with experience in libel law, and I think they would conclude that a suit did not have much of a chance of success.
I am not a lawyer, and none of the following should be construed as legal advice, only a personal opinion about the scope of libel law based on a quick dive into relevant national court cases, with no attempt to address the merits of this situation specifically. I got curious about all of this and wanted to take a closer look at elements of the legal issues in play. I’m placing this comment here out of convenience, though it has relevance to my conversation with @RamblinDash as well.
I’ll touch on a few legal points that seem relevant, though this is necessarily a partial list, filtered approximately by “what was easily in reach in the casebook I had on hand”.
1. Referencing claims made by specific sources:
Under Restatement (Second) of Torts § 578, a broadly but not universally accepted summation of common law torts, someone who repeats defamatory material from someone else is liable to the same extent as if they were the original publisher, even if they mention the name of the original source and state they do not believe the claim. Claims of belief or disbelief, while not determinative, come into play when determining damages.
Two important Supreme Court cases, St. Amant v. Thompson, 390 U.S. 727 (1968) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), while focused primarily on the question of what constitutes actual malice, take for granted that publishers can be held liable for the claims of their sources. St. Amant focuses on a defendant who read questions he had asked someone else, Albin, about a public official, and Albin’s false answers. In Harte-Hanks, the defendant publisher of the Journal News ran a story quoting false claims from one Alice Thompson that a judicial candidate, Connaughton, had bribed her and her sister.
Harte-Hanks is particularly useful to understand the scope of libel and the bar to meet for libel against a public official, the “actual malice” standard. Thompson’s allegations of wrongful conduct were denied by Connaughton and five other witnesses. Thompson’s sister Patsy Stephens, who had allegedly been present, was available for interview, but the newspaper did not interview her. The Journal News editorial director wrote an editorial two days before the article indicating that an article about impropriety would surface soon, taken as evidence that it had decided to publish the article before verifying its sources. The First Amendment has been interpreted since New York Times v. Sullivan as presenting a high bar to prove defamation against public figures (the above “actual malice” standard), with a high value placed on protecting freedom of speech; this case (with several indications of serious impropriety) fails that standard and the publication was ruled libelous.
2. Epistemic uncertainty:
Restatement (Second) of Torts § 566 touches on expressions of opinion, clarifying that opinions are actionable to the extent they are based on express or implied defamatory factual claims.
Per Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), opinions that rest on factual claims (e.g. “In my opinion John Jones is a liar”) can imply assertions of objective fact, and connotations that are susceptible to being proven true or false can still be considered. Opinions are not privileged in a way fundamentally distinct from facts.
There’s a lot more that goes into the determination, including the hard-to-pin-down idea of what makes someone a public versus a private figure, privileges that can be asserted, differences between case law in different jurisdictions, and so forth, and I am neither qualified to make a sound declaration on the merits nor interested in doing so. I’ve just been curious about the specifics of libel for a while and now seemed like as good a time as any to familiarize myself a bit more with the case law.
Thanks for the research! I’m guessing that there’s probably a lot of nuance here, such as if, e.g. the President falsely accuses someone, then the false accusation is independently newsworthy and that might be protective of the media outlet who repeated it while saying that it doesn’t believe the President’s accusation. But I’ve updated my view on the core question and disendorsed my initial comment.
Yes, my understanding (again: not lawyer, not legal advice) is that a lot of that gets covered under the Fair Reporting privilege, which allows reporters to provide fair and accurate summaries of public meetings (eg rallies, speeches, Congress), including defamatory comments made by public officials at those meetings. It’s also worth mentioning the broader Neutral Reportage privilege, adopted in a few jurisdictions but rejected in others, providing freedom to neutrally report untrue statements made by a public official or prominent organization, about a public figure or public official, relating to or creating a public controversy. Edwards v. National Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977) (in which the New York Times faced lawsuits for reporting that the Audubon Society had accused several scientists of being paid by pesticide companies to lie) is the key case to look at there.
I would be curious for that to occur and will make no confident proclamations about what they would or would not say. I suspect the epistemic status markers included are not nearly as protective as you would assume to the extent actual, materially harmful falsehoods were published, but I could be mistaken.
1. The republication rule: Say that Alan writes, “Betty alleges Charlie committed armed robbery.” Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false. American libel law has long adopted the “republication rule,” under which Alan is potentially liable for defamation — if Betty’s allegation actually proves to be false — even if he expressly attributes the statement to Betty. (See Restatement (Second) of Torts § 578.)
And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that “Tale bearers are as bad as the tale makers.”
Yes, just citing someone is not sufficient, though from what I read it does still pretty substantially matter to how these kinds of suits go.
The more relevant dimension where this matters is that the prosecution would have to prove that Ben knew the information was inaccurate, which is a lot harder if the post is pretty clear about its sources and epistemic status and evidence that was available.
I fundamentally disagree with the way a lot of rationalists are treating the threat of legal action. The legal system is a failsafe to ensure means for protection against serious misbehavior. Based on this post, I think Nonlinear is correct to assert that several of the claims in the original article were false and likely libelous. Legal action in response to libelous claims aimed at destroying your reputation in your community is not escalatory, it is proportionate, and a threat of it should be a reminder that the situation is serious, not treated as casus belli to publish any and all information.
I think that the threat to sue could have been okay if there were significant errors in Pace’s piece, but what are they? What specific phrases do you think are likely libelous.
To me, the threat to sue over minor inaccuracies, usually clearly marked as “Alice said” etc and given Alice was described as an unreliable narrator, seems like a bad norm and one I want to push back against.
Also I think the legal system is really dysfunctional. It seems that Nonlinear was creating an environment where it was hard to report accurately about them and to sue people who write articles like this would, I think further that, whether they would win or not. They have that right, sure, but respect them less for the threat, especially given, personally the article itself doesn’t seem to allege awful behaviour in my view.
As the publisher, Ben has a duty beyond simply uncritically repeating a source’s claims, if he knew or had reason to know those claims are materially false—including not taking reasonable steps to verify truth. The claim about being asked to transport illegal recreational drugs across a border is the most immediately clear one to me. Nonlinear told him it was false, had screenshots available to the contrary, and he published it. Whether he preceded it with “Alice says” makes little difference in terms of either moral or legal responsibility.
I respect that you don’t see the allegations as awful, but it looks like they had a dramatically negative effect on the reputation of the organization as a whole. The bar for writing something that has dramatic negative effects on someone’s reputation is and should be high; the court of public opinion is no better or more functional than the court of law.
It seems fundamentally inaccurate to me to treat lawsuit threats as an escalation to the decision to publish something that will destroy an organization’s reputation within their own community. Whatever the merits of any specific suit, those are equally adversarial decisions and the one is a proportionate response to the other, not an escalation.
Pace reports Nonlinear said they did ask for people to bring illegal recreational drugs over the border for them. Have they claimed he was lying when he reports them here:
”Third; the semi-employee was also asked to bring some productivity-related and recreational drugs over the border for us. In general we didn’t push hard on this. For one, this is an activity she already did (with other drugs). For two, we thought it didn’t need prescription in the country she was visiting, and when we found out otherwise, we dropped it. And for three, she used a bunch of our drugs herself, so it’s not fair to say that this request was made entirely selfishly. I think this just seems like an extension of the sorts of actions she’s generally open to”
Again, I don’t care about this much, but Pace can’t be accused of not following the facts if Nonlinear said they did something very similar to the thing they are accused of on another occasion, right?
Pace says “I bring this up as an example of the sorts of requests that Kat/Emerson/Drew felt comfortable making during Alice’s time there.”
Pace reports Nonlinear as saying “I think this just seems like an extension of the sorts of actions she’s generally open to”
Looks pretty similar to me. Sometimes people take drugs across borders. That’s on them, but if you’re asking employees to do it, then that’s the kind of thing you ask employees to do.
My understanding is that they are addressing the same event (pharmacy for antibiotics and ADHD meds) in all locations, and they make it clear in his post they dispute every part of his frame about that event, including his presentation of their response as basically agreeing with him.
I’m not sure the value in focusing on a specific story when I’m making a general behavioral claim, though. My stance is this:
If (1) you inform someone that you are going to publish something that will be severely detrimental to their reputation and (2) they assert you are making several materially false claims in that publication, claims they have hard evidence exist, then (3) it is unreasonable not to wait to review that evidence, and (4) a libel suit is proportionate, not escalatory, in response to the actual publication of falsehoods that severely damage someone’s reputation.
From those, it follows that warning of a potential libel suit in advance of publication should absolutely not be read as “I am being unreasonably threatened and therefore should publish immediately to stand up to bullies.” It should be read as “I am entering a serious, mutually adversarial situation and I should be absolutely sure, to the best of my ability, that I have my facts straight.” The initial seriously adversarial decision is the choice to publish allegations, not the choice to sue. Both can be correct or incorrect depending on specific circumstance.
The decision to publish immediately, and your endorsement of that decision, is a bad misread of the situation—not defecting in response to defecting, but carelessness bordering on malice in an already adversarial context—and one that causes predictable harm should any allegations be materially, provably false.
I think a legal threat is like a bet “I’m so confident that you are wrong that I’m going to waste both of our time and cause huge amounts of damage”.
I currently think they lose that bet. The best example of libel you can find is small and I am pretty uncertain of it. I can imagine going either way.
I consider a libel suit a weighty thing to threaten and if you do there better be a serious reason. I don’t see it. So it should come with big costs.
To me, it’s a bigger threat than the discrepancies I see here.
No, it’s not. That’s nothing like how legal threats work in the real world.
What are legal threats like in the real world?
I’ve been threated with legal action once (by Jay Z’s record company for a parody I made) and it felt like a bet. I probably could win if I spent a lot of money, but I didn’t have that money and so I took the song down.
“I’m going to expend both of our time and cause huge amounts of damage” happened upon publication of the initial allegations. It was guaranteed to happen upon publication of the initial allegations. It was, in simple fact, the expected result of the initial allegations.
The original post was a weighty decision and if you post it there has better be a serious reason. A legal case is procedurally more weighty than inflicting massive reputational damage on someone in their own community, but it’s not clear that it’s morally more weighty, and treating it as escalatory feels like a category error no matter who you think wins the overall “bet” between Ben and Nonlinear.
Sure, but I think that Ben win’s that bet. To me it looks like the reputational adjustment he sought was worth it.
The libel case, not so much.
And I think the libel case wastes a huge amount more resources and currently it doesn’t improve Nonlinear’s reputation. After the case, I guess, or reading this file I think I’m pretty static on before it.
“I’m correct in seeking to inflict enormous reputational damage on you, therefore you are unjustified in responding with a threat of legal action, and your threat of legal action justifies me refusing to proactively examine promised exculpatory evidence” is the position I hear you endorsing, and I find it bizarre.
No! You can’t enter an adversarial frame, then object when people accurately treat it as adversarial and use their adversarial response as an excuse to avoid due diligence! That is not, or should not be, how any of this sort of investigative journalism works.
How about
”I’m correct in seeking to inflict large reputational damage on you because I can back up my claims, but should escale with a threat of legal action without seemingly being likely to win it, your frivolous threat of legal action justifies me reducing my engagement with this process”
You’re right that I feel less certain of this. But I do think there is a difference between accusations you can back up and those you can’t.
I guess I don’t see it as adversarial to reveal the truth. I don’t sense Pace was being directed about this. The libel threat feels directed.
I guess I think you see the two parties as the the same in some key way. I don’t.
No. He knew he was operating on partial information; he knew they had a great deal of information they were willing to give him in a short time span; he had no way of evaluating the quality of the evidence they would give before they would give it. He was not justified in half-doing his job whether or not they were being unpleasant in response—a threat of legal action is emphatically not an excuse to avoid considering their evidence prior to publication or rushing publication unless it becomes clear they are unreasonably delaying. A week or two, in response to serious allegations, is not an unreasonable delay, and no matter the ultimate strength of their story he neglected his responsibility to proactively understand it.
This seems likely false given how long this process took.
I could agree, though it’s unclear when the threat was made. If after the initial call then this isn’t true.
Yeah I still think he should have initially offered a week. I say as much. On the shortening, i don’t know.
When they asked for, and were denied, one week to compile evidence, I don’t think it’s reasonable to conclude much of anything based on the final response process taking longer.
It’s absolutely adversarial to reveal the truth if the truth is harmful to someone. It’s critical to distinguish between “adversarial” and “bad.” Choosing to investigate a group over a long period of time and then publish information to damage them is fundamentally an adversarial act. Not a bad thing, but for one who aims to practice investigative journalism, vital to keep in mind.
If your goal is to reveal the truth and not to inflict harm on someone, you should wait until you have all sides as thoroughly as you can reasonably get them, and not cut that process short when the party you are making allegations against responds with understandable antagonism—until and unless they refuse to cooperate further and have no more useful information to give.
I also want to add that I think the community in general has shown a mild failure in treating the legal action threat as evidence of wrongdoing even if the lawsuit would ultimately fail.
It is really bad to treat a libel suit threat as some horrible thing that no one “innocent” would ever do. It’s a form of demonizing anyone who has ever used or thought to use the legal system defensively.
Which if intended, seems to be fundentally missing what the point of a legal system should be. It is no doubt a problem that people with lots of power, whether it’s fame or money or whatever, are more likely to win legal battles.
But it’s also a way more truth oriented process than the court of public opinion. And many people who would have stood 0 chance of getting justice without it have gotten some through it.
Do such threats have a chilling effect on criticism? Of course, and that’s a problem, particularly if they’re used too often or too quickly.
But the solution cannot be “no one makes such threats no matter what.” Because then there’s no recourse but the court of public opinion, which is not something anyone should feel comfortable ceding their life and wellbeing to.
I think someone outside the community seeing this sort of reaction of people inside it being shunned, demonized, etc for threatening to use a very core right that they’re entitled to would likely find it… pretty sketchy.
Because it can easily be construed as “we resolve these things ‘in house,’ via our own methods. No need to get Outsiders involved.”
And man, it sure would be great if we had that sort of high trust effective investigation capability in the community.
But we really have not shown that capability yet, and even if we do, no one should feel like they’re giving up their basic rights to be a member of good standing in the community.
I think many if not most people in Emerson’s position, feeling like they were about to be lied about in a life-destroying way, had facts to rebut the lies, and were being essentially ignored in requests to clarify the truth, would think of legal action.
Whether they would be wrong in how easy it would be to win is a different issue entirely from that very (from base society perspective) normal view.
What the legal system should be is irrelevant.
I think I agree with that. But I think legal action is a big escalation. If they’d said, “we asked for more time and didn’t get it” I think I’d have been a bit more on their side.
Or if it turned out the legal action was warranted.
Morally, I agree with you. Legally, I think you are not correct at least as pertains to US law, which has much higher standards to meet for defamation claims than most European countries. In the US, the truth of the statement is generally an absolute defense to liability. If I publish a story of the form “A says B committed a crime; B denies/disputes it”, then in general I would not have liability if A in fact said that, because my statement was true (though A might have liability, of course).
My understanding of truth as an absolute defense to libel (disclaimer: law student, not lawyer, and referring to hastily examined case law, not deeply researched understanding) is that it refers to the truth of the core statement, not the truthful replication of defamation. In other words, I believe you can still be liable for publishing “A claims X” when X is false and you had reason to know that, depending on the circumstances.
If people are interested in reading more about this, I think the thing to look into is “republication liability”, and in the US seems to be pretty unsettled, with some state-by-state variation.
It doesn’t look like a bare defense of “I wrote ‘Alice told me X’ and can prove that Alice told me X” is sufficient, but it also looks like just demonstrating that X is false is not enough. Some considerations, depending on where you are:
Did the author know X was false?
Did the author put sufficient effort into assessing the truth of X?
Was the author acting as a neutral reporter of facts?
(Not a lawyer, or even a law student)
As these apply to the allegations in Ben’s post:
Did the author know X was false? -- I doubt it, with the possible exception of not updating the post after receiving Spencer’s screenshots 2-3hr before publication.
Did the author put sufficient effort into assessing the truth of X? -- Probably not, since the general goal was signal-boosting the concerns and the final ‘adversarial’ fact checking was quite short (especially for any allegations first raised in the draft NL received right before publishing).
Was the author acting as a neutral reporter of facts? -- Probably not, since Ben’s post is pretty clearly trying to signal-boost a bunch of allegations about NL.
You could be right. I don’t practice in this area and thus don’t claim to have greater knowledge than you on this. I still disagree, but people should understand this is a sorta equal epistemic status disagreement.
The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something. You could run this by a lawyer with experience in libel law, and I think they would conclude that a suit did not have much of a chance of success.
I am not a lawyer, and none of the following should be construed as legal advice, only a personal opinion about the scope of libel law based on a quick dive into relevant national court cases, with no attempt to address the merits of this situation specifically. I got curious about all of this and wanted to take a closer look at elements of the legal issues in play. I’m placing this comment here out of convenience, though it has relevance to my conversation with @RamblinDash as well.
I’ll touch on a few legal points that seem relevant, though this is necessarily a partial list, filtered approximately by “what was easily in reach in the casebook I had on hand”.
1. Referencing claims made by specific sources:
Under Restatement (Second) of Torts § 578, a broadly but not universally accepted summation of common law torts, someone who repeats defamatory material from someone else is liable to the same extent as if they were the original publisher, even if they mention the name of the original source and state they do not believe the claim. Claims of belief or disbelief, while not determinative, come into play when determining damages.
Two important Supreme Court cases, St. Amant v. Thompson, 390 U.S. 727 (1968) and Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), while focused primarily on the question of what constitutes actual malice, take for granted that publishers can be held liable for the claims of their sources. St. Amant focuses on a defendant who read questions he had asked someone else, Albin, about a public official, and Albin’s false answers. In Harte-Hanks, the defendant publisher of the Journal News ran a story quoting false claims from one Alice Thompson that a judicial candidate, Connaughton, had bribed her and her sister.
Harte-Hanks is particularly useful to understand the scope of libel and the bar to meet for libel against a public official, the “actual malice” standard. Thompson’s allegations of wrongful conduct were denied by Connaughton and five other witnesses. Thompson’s sister Patsy Stephens, who had allegedly been present, was available for interview, but the newspaper did not interview her. The Journal News editorial director wrote an editorial two days before the article indicating that an article about impropriety would surface soon, taken as evidence that it had decided to publish the article before verifying its sources. The First Amendment has been interpreted since New York Times v. Sullivan as presenting a high bar to prove defamation against public figures (the above “actual malice” standard), with a high value placed on protecting freedom of speech; this case (with several indications of serious impropriety) fails that standard and the publication was ruled libelous.
2. Epistemic uncertainty:
Restatement (Second) of Torts § 566 touches on expressions of opinion, clarifying that opinions are actionable to the extent they are based on express or implied defamatory factual claims.
Per Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), opinions that rest on factual claims (e.g. “In my opinion John Jones is a liar”) can imply assertions of objective fact, and connotations that are susceptible to being proven true or false can still be considered. Opinions are not privileged in a way fundamentally distinct from facts.
There’s a lot more that goes into the determination, including the hard-to-pin-down idea of what makes someone a public versus a private figure, privileges that can be asserted, differences between case law in different jurisdictions, and so forth, and I am neither qualified to make a sound declaration on the merits nor interested in doing so. I’ve just been curious about the specifics of libel for a while and now seemed like as good a time as any to familiarize myself a bit more with the case law.
I also appreciate this!
Thanks for the research! I’m guessing that there’s probably a lot of nuance here, such as if, e.g. the President falsely accuses someone, then the false accusation is independently newsworthy and that might be protective of the media outlet who repeated it while saying that it doesn’t believe the President’s accusation. But I’ve updated my view on the core question and disendorsed my initial comment.
Yes, my understanding (again: not lawyer, not legal advice) is that a lot of that gets covered under the Fair Reporting privilege, which allows reporters to provide fair and accurate summaries of public meetings (eg rallies, speeches, Congress), including defamatory comments made by public officials at those meetings. It’s also worth mentioning the broader Neutral Reportage privilege, adopted in a few jurisdictions but rejected in others, providing freedom to neutrally report untrue statements made by a public official or prominent organization, about a public figure or public official, relating to or creating a public controversy. Edwards v. National Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977) (in which the New York Times faced lawsuits for reporting that the Audubon Society had accused several scientists of being paid by pesticide companies to lie) is the key case to look at there.
I would be curious for that to occur and will make no confident proclamations about what they would or would not say. I suspect the epistemic status markers included are not nearly as protective as you would assume to the extent actual, materially harmful falsehoods were published, but I could be mistaken.
“The original post is really quite careful in its epistemic status and in clearly referencing to sources claiming something.”
This is insufficient. See: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/13/when-there-is-serious-reason-to-doubt-rumors-and-allegations-is-it-libelous-to-publish-them/
Yes, just citing someone is not sufficient, though from what I read it does still pretty substantially matter to how these kinds of suits go.
The more relevant dimension where this matters is that the prosecution would have to prove that Ben knew the information was inaccurate, which is a lot harder if the post is pretty clear about its sources and epistemic status and evidence that was available.