"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, September 26, 2006

Law Firm to Quit, Join Marines?

Believing themselves to be in "Voltaire's shoes" for defending the Westboro Baptist Church ("God Hates Fags" and protesting at military funerals) against a defamation suit brought by the family of a slain Marine, a law firm pompously proclaims:

Two decades before the First Amendment ever was adopted, Voltaire sensibly proclaimed that even if “I detest what you write, [] I would give my life to make it possible for you to continue to write.” A defense victory in this lawsuit will continue the First Amendment’s role in protecting everybody’s free expression rights, whether or not that expression be as extreme and despicable as many of the views and statements ascribed to the defendants.
Because of the financial ruin that can face them from libel, defamation, and slander lawsuits -- all are phrases covering the same type of lawsuit -- too many individuals, newspapers, and other organizations self-censor to the point that the critical truth too often is suppressed. [...]
Libel suits should be stricken from the books as incompatible with the First Amendment and fundamental individual liberty.

Hmmm. Under this view, any vile and false claim against anyone would enjoy constitutional immunity. Detraction and calumny have both been traditionally understood in the West to be serious personal faults. On the broader view that a person has a right to enjoyment of his good name and reputation, the law of libel has punished reckless attempts to rob a victim of this enjoyment.

We have counter-balanced this concern about the right to enjoyment of one's good reputation with the recognition that truth should usually be favored and protected; hence, truth is an absolute defense to a libel action. Heck, if you pick on a so-called "public figure" it's really fair game and you can pretty much say anything reckless you care to say-- the victim in order to defend his or her good name has to hurdle over the very high bar of proving that the defamer had "actual malice--" i.e., that he wasn't just mistaken or careless about his statements.

I noticed, in reading the motion to dismiss the complaint, that the Church is not claiming truth as a defense, but rather, relying on jurisdictional, venue, and First Amendment defenses. Of course, these idiots could hardly plead the truth as their defense, since the gist of the complaint is that on their website and at the funeral service for the slain Marine, the defendants claimed that the deceased was killed as a punishment for serving a government that permits homosexuality.

Whether that position is an actionable libel or a "mere" opinion remains to be seen. For instance, Feige's opinion that a prosecutor he mentions in his book is "dowdy" shows that he is a mean, hypocritical, small person, but it is just an opinion for which she will not get a libel judgment against him. However, his false and defamatory assertions that she is "sleazy" and unethical are more than opinion, they are assertions of fact which touch on her professional conduct and if not proven to be true, are actionable.

In any case, getting back to the pompous law firm defending the First Church of God Hating Fags, why do I doubt seriously that they would really die for the church's alleged right to voice their views? Why do I doubt they would even defend them if the church stopped paying?

Who was the one person in this story actually willing to die for the preservation of the rights of others?

The Marine, of course.

4 comments:

Windypundit said...

Well said.

However, if plaintiffs really are suing because "defendants claimed that the deceased was killed as a punishment for serving a government that permits homosexuality" then I hope this case goes away. We really don't need the courts deciding what people can say about God. Nothing good will come of that.

123txpublicdefender123 said...

For the most part, I agree with you on this, Tom. And I personally find what this "church" is doing to be one of the most morally repugnant things I can imagine. But this little bit:

I noticed, in reading the motion to dismiss the complaint, that the Church is not claiming truth as a defense, but rather, relying on jurisdictional, venue, and First Amendment defenses.

isn't really fair, is it? You can't file a motion to dismiss a libel suit on the grounds that the statements were true. That is a fact issue to be decided at trial, or at summary judgment at the earliest. The legal issues like jurisdiction, venue, and the First Amendment are what you plead in a motion to dismiss.

Daniel Quackenbush said...

I almost agreed. However, I didn't see where the protesters were claiming that the Marine was homosexual. If the protesters are claiming or implying that the marine is homosexual (not just the absurd claim that god is killing people because of too many homosexuals), then the suit should proceed, and in my opinion there should be a large monetary award. If not, then the protesters should be allowed to picket because they are condemning homosexuals in general and government policy for the Marine's death (I would condemn an alleged god if he is killing innocent people to punish us), which is a right protected under the First Amendment. It should not be defamation to be known or accused of being a homosexual, but the fact is that most people look down on someone who admits being homosexual.

Tom McKenna said...

I agree with Windy that the statement is probably not libelous. And Tex, you're no doubt correct that truth would not necessarily be plead in a motion to dismiss. Civil pleading ain't my area! But I also doubt if the issue went to trial that the church would be asserting a truth defense: this type of statement cannot be empirically proven, which is why, getting back to Windy's point, the statement is not so much libelous as much as it is a ludicrous opinion.