I’m sure everyone’s mother, like mine, at some point paraphrased Bambi’s advice to Thumper and said, “If you can’t say something nice, don’t say anything at all.” No doubt this is sound advice when you are 12, but as an adult and an information professional, it takes on a whole new meaning. Where does saying things that aren’t all that nice intersect with freedom of speech?
Those who blog, tweet, and otherwise comment on critical issues affecting their work and workplace communities do so to offer constructive criticism. You have opinions, and potentially concerns, about issues that you want to share with others who might be dealing with similar issues. Sometimes as part of those commentaries, you can’t restrict yourself to remaining “nice” in order to communicate your thoughts, beliefs, and perspectives about the practices or actions of others. But then you run the risk of a SLAPP (Strategic Lawsuit Against Public Participation).
PERILS OF NOT WRITING NICE
Two librarians who blog about publisher issues recently learned about the costs potentially associated with not being “nice.” Dale Askey, a librarian at McMaster University in Ontario, Canada, was sued by the Edwin Mellen Press and its founder, Herbert Richardson, for a 2010 blog entry that was critical of the press. (Askey was working at Kansas State University, Manhattan, Kan., as its content development and electronic publishing librarian when he wrote the post. His blog is bibliobrary.net.) The suits included both Askey and McMaster University and claimed that the blog entry defamed the press and its founder. The lawsuits sought damages of more than $4 million for the defamation.
In the second instance, Jeffrey Beall, a librarian at the Auraria Library at the University of Colorado–Denver, received a letter from lawyers representing the Canadian Center for Science and Education claiming that a series of posts by Beall on his blog (scholarlyoa.com) defamed the center and some of its related publications. The letter demanded that Beall “immediately remove” the offending posts and demanded an immediate payment of $10,000 for “attorneys fees and damages.” Failing to comply, the letter implied, would result in a lawsuit.
Of course, the blogosphere’s response is that it is actually the publishers that are not playing “nice.” Other commentators and bloggers have risen to the defense of Askey and Beall in support of their original posts, as well as their right to post criticisms on critical issues of the day. The response has had some success in that the Edwin Mellen Press has dropped its suit against Askey and the University. As of this writing, however, Richardson has not dropped his suit. It is not known whether the lawyers for the Canadian Center for Science and Education have made good on their threat to sue Beall. A review of Beall’s website, however, shows that all of the blog entries mentioned by the center’s lawyers are still posted.
While these current confrontations may be ending in a draw, it does not diminish the challenge of criticizing businesses and individuals without crossing over the line to defamation. They shed little light on how to respond to litigation, or threats of litigation, arising from criticisms that may or may not reach the level of defamation. The threat of litigation alone can have a significant “chilling effect” on the person who criticizes, dissuading him or her from engaging in the criticism. In many cases, this may be the primary goal behind the threat of litigation, much more so than an expectation of damages.
Defamation law is particularly challenging, as it concerns the intersection between the free speech rights of people who comment on and criticize the actions of others and the equally legitimate interest of those others in maintaining their good reputations. The great legal scholars William Lloyd Prosser and W. Page Keeton summed up defamation law by saying, “It must be confessed at the beginning that there is a great deal of the law of defamation which makes no sense” (Page and Keeton on Torts, West Group, 1984).
Defamation is usually defined as a communication that “tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him” (from the Restatement of Torts, Second, Section 559, published by American Law Institute). But the result has to be more than mere hurt feelings. In order to be defamatory, the communication must expose the person or business to public hatred, shame, contempt, ridicule, or “evil or unsavory opinion.” Businesses and organizations can also be defamed to the extent that the business or organization—like a person—has a reputation that is entitled to protection.
A critical element of defamation is that the communication must be false. This is often not as simple as it seems. As philosophers down the ages have asked, “What is truth?” without coming up with a clear-cut answer, so it is that the legal determination of “Is it false?” can be equally elusive. Say, for example, a blogger asserts that a publisher is falsely claiming to be a nonprofit company when the blogger asserts that it is a for-profit company. How would that fact be determined? By the presence or absence of having the legal status of a 501(c)(3) nonprofit company. Is that in and of itself determinative of “nonprofit” status? By the balance sheets showing whether income is greater than expense (profit) or less than expense (no profit)? The answer is not as clear-cut as it may appear.
When the assertion is based on innuendo, omissions, or implication, the challenge becomes greater. Say, for example, the blogger asserts that the publisher’s CEO has no experience in publishing (a true statement), that the publisher is deeply “in the red” financially (also true), and that the publisher published plagiarized material (also true), concluding with the implication that this is a publisher that should be avoided. As it turns out, the CEO was hired for his financial acumen and other executives competently run the day-to-day operations, the publisher is “in the red” due to investments in capital expenses and is expected to recoup future benefits, and only one out of dozens of publications contained some plagiarized material. Has defamation taken place even though the individual statements are true? Some courts would say yes.
EXPRESSION OF OPINIONS
By far, however, the biggest challenge of defamation law is in the expression of opinions. Expression of opinions were at the core of the Askey and Beall postings, opinions that were based on various subjective and objective criteria that the bloggers considered to add up to be grounds for criticism. Opinions are considered to be ideas, which are heavily protected by the Free Speech clause of the First Amendment. This principle suggests that ideas cannot be considered to be false (or necessarily true for that matter), and because an idea can’t be false, it therefore can’t be defamatory. In a case involving former Charles Manson prosecutor Vincent Bugliosi, a court held that, “if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, a conjecture, a surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable” as defamation.
That said, opinions are not entirely free from the possibility of being defamatory. Opinions are generally a mix of subjective ideas and objective facts presented in a specific context and usually with some level of figurative language to knit the ideas and facts together. In evaluating whether an opinion may be defamatory, courts will look at the general tone of the work as a whole, the content and context of the statements, and whether the statement contains facts that can be proved to be true or false. Some courts will also consider where and how the opinion is presented, such as whether it is an op-ed, a letter to the editor, a critical review column, even a cartoon or comic strip. If the statement is presented in a format that is traditionally expected to present opinions rather than factual statements, courts are more likely to consider it as a nondefamatory opinion. It could be argued that personal blogs are in similar “opinion-oriented” categories as op-eds or critical reviews.
But at the end of the day, criticism is criticism and may result in, at a minimum, the threat of liability. Oftentimes, the motivation behind the threat of liability is to stop the criticism, not necessarily because the criticism has caused actual, compensable damage to the reputation of the criticized person or business. An expression has grown up to characterize these kinds of threats: SLAPP suits. These suits were first seen in the early 1980s and often filed against nonprofit or public interest groups that were vocally protesting government or business activities. As the goal of these suits—frequently, but not always, characterized as defamation lawsuits—was to shut down the criticism, there were concerns that the lawsuits violated the free speech rights of the critics. In response, many jurisdictions enacted “Anti-SLAPP” statutes or court procedures. The Anti-SLAPP procedures usually involved the right to stop a lawsuit much earlier in the typical litigation process and potentially recover costs for defending against the SLAPP suit.
Were these actions against Askey and Beall SLAPP suits? Although many bloggers and commentators have weighed in on these particular cases, comments characterizing these actions as SLAPP suits or not as SLAPP suits are nothing more than their own expressions of opinion. One challenge of the Anti-SLAPP procedures is that people who believe they have been defamed do in fact have a right to their day in court. Plus, human nature suggests that no one likes to be criticized. However, one of the founding principles underlying the First Amendment is the right to comment and criticize within the bounds of truth. And to the extent that bloggers remain within the bounds of truth or the expression of ideas, their right to criticize is protected.
The challenges that these and similar cases provide for bloggers are: How much should you criticize? How do you structure your criticism? How do you respond to threats against your criticism? Honest, truthful criticism has strong protection under both free speech principles and defamation laws. Certainly, some care should be taken in structuring the criticism. Be certain that any statement that includes objective facts is demonstrably true. Be clear in expressing your opinion that it is only your opinion. Support your position, but allow your audience to draw their own conclusions.
INTERNET AS BROAD NEW FORUM
The internet has played a huge role creating both a broad new forum for legitimate criticism and a frightening environment for defamation to run rampant. It can be argued that if Askey and Beall had presented the same criticisms in a different format, say published in a librarian’s newsletter or opinion letter in a trade journal, the limited publication would likely have either escaped notice by the publishers or not merited a response. The viral distribution available through the internet changed that and was likely a factor in the publishers’ responses. On the other hand, the viral publicity machine that is the internet—through blogging, tweeting, social media, and other communications tools—arguably was a factor in the withdrawal of the press’s suit against Askey and the lack of action (again, as of this writing) against Beall.
The internet provides a powerful and effective forum for comment and criticism on personal, political, and professional issues of the day. But to cite another famous quote (usually attributed to Spiderman, but actually from Voltaire), “With great power comes great responsibility.” Blogging has the potential for great impact. But great impact can often cause great disruption, and bloggers need to be cognizant of that impact.