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PaperclipPerfector  1yr ago (text post)   30380 thread views

Culture War Roundup for the week of May 8, 2023

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You need a third ingredient. If the accusation is false, what’s stopping the target from suing your ass first? The truth is an absolute defense against defamation. This incentive only arises when the accuser has enough evidence to protect against a lawsuit. That’s hardly out of thin air.

The truth is an absolute defense against defamation

Only in some countries. For example in Japan you can be found guilty of defamation even if what you said is 100% demonstrably true. In some cases having it be true is even worse than lying as damages are calculated on harm done to someones reputation, and if people can independently verify that your speech is true is does more harm.

I tried to find a good article exploring the reasons/consequences of this but couldn't. Anyone have a link?

I live here (Japan) and this is only one aspect of Japanese law that makes me uneasy. I even pause when leaving online restaurant reviews for this reason.

For me it was the police's ability to hold anyone in custody for up to 23 days without charges. I avoided police, and in the rare case I had to interact with them I was exceedingly deferential and polite.

The most instructive scenario to consider here is how the Shitty Media Men litigation transpired. Suing people is a significant time commitment and money sink, especially for defamation. Out of the 70 men on that list, AFAIK only Stephen Elliott was dogged enough to pursue legal action. As nonsensical as some of the accusations against Elliott were ("unsolicited invitations to his apartment") he was "lucky" that his sexual habits were peculiar enough and his accusations specific enough that he could at least try to mount a credible rebuttal:

I don't like intercourse, I don't like penetrating people with objects, and I don't like receiving oral sex. My entire sexuality is wrapped up in BDSM. Cross-dressing, bondage, masochism. I'm always the bottom. I've been in long romantic relationships with women without ever seeing them naked. Almost every time I've had intercourse during the past 10 years, it has been in the context of dominance/submission, often without my consent, and usually while I'm tied up or in a straitjacket and hood. I've never had sex with anyone who works in media.

I am not seeking to come out about my sexuality as a means of creating a diversion, as Kevin Spacey appeared to do when he was accused of sexual misconduct. I've always been open about my sexuality, and I have even written entire books on the topic. I've never raped anybody. I would even go one step further: There is no one in the world who believes that I raped them.

I grant that maybe some of the accusations on the list were true, but many were just vague and accordingly impossible to defend against. Lawsuits are also seen as antagonistic, and there is significant social pressure against resorting to that remedy. I gather that some men just found it easier to slink away than risk magnifying their pariah status within the gossip-friendly field of media. Elliott eventually "won" a settlement from the list's creator but who knows how much money each side bled out since the lawsuit dragged on for almost five years.

Actually suing someone is expensive but threatening to sue someone isn't expensive. It's expensive on the plaintiff's side too, and unless you're of enough means that an attorney can expect to actually collect on a decent size judgment, good luck even finding someone to take the case. Most of the people who find themselves the subjects of defamation suits where the defamatory remarks are mere denials of other potentially defamatory remarks have enough money that they could marshal some powerful attorneys who could nip the thing in the bud before it becomes a big deal. Trump could have easily afforded to have some biglaw attorney draft a letter explaining that the comments were defamatory and he's prepared to sue unless she's willing to make a public denial. If she balks, have a complaint drafted that will be filed if they don't start making progress in negotiations. After she finds out how much it's going to cost for the cheapest attorney in town to defend something like this she'll probably consider recanting.

That being said, I agree with you overall because having rich people threaten expensive lawsuits to fend off average people who say bad things about them is a pretty shitty way to do business, especially if the allegations are true. I'd much rather have a situation where mere denials aren't considered defamation, regardless of how far along we are in the chain of "who started it". Wealthy people have the option to threaten litigation to shut people up as it is, and I'd rather see some reform before they resort to actually doing it to fend off lawsuits.

Okay, but that kind of wrecks the incentive to make up accusations whole-cloth. The more people—or the more prominent—you target, the higher chance that one of them is Peter Thiel.

Okay, but that kind of wrecks the incentive to make up accusations whole-cloth.

I'm not sure what you mean by "that". The creator of the Shitty Media Men list did lose in this instance but this was a unique and unusual set of circumstances.

Without an expansion of the "Litigation Privilege" or something like it to cover these circumstances, we create the incentive to conjure up a defamation action out of thin air. The only ingredients you need are to levy an accusation and wait for your target's inevitable protest.

We already have “something like it,” and it’s the normal defamation torts. They already threaten would-be accusers with liability. Sure, following through is expensive and uncertain. But it clearly can happen—especially if the accused is rich, reputation-conscious, or has proof.

Expanding litigation privilege swings the balance too far. It gives the accused every incentive to smear the accuser’s reputation, regardless of the truth. That sort of speech should be kept to a court of law, where it is already protected.

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