Tuesday, June 02, 2009

Question of the Day

Why cannot Tiller's family sue Randall Terry, Bill O'Reilly, and others, for publicly slandering the doctor? For that matter, a kind of class action lawsuit filed by multiple doctors is imaginable, is it not?

Doctors after all are surely not public figures in the same way that politicians and pop stars are. Or are they?

Hmmmm. If someone got on television everyday and called Harrogate a murderer of babies, Harrogate would be able to sue that person, wouldn't he? Since Tiller was acting within the law, and thus demonstably not a murderer, why is it out of bounds to file a lawsuit against those who call him and other doctors murderers?


solon said...

During lunch the other day, Megs and I discussed this in terms of the suggestive lyrics in music cases with Ozzy and Iron Maiden.

In this post, you deal with two different types of first amendment law. First, there is the incitement test for political speech, which the threshold for determining the constitutionality concerns a three-tiered test of intent, imminence, and likelihood. The problem with O'Reilly's statement concern the casual connection between the words and the violence (O'Reilly must have incited the violence, which calls into question the free will of the person who committed the murder as the murderer would have acted without contorl of his own actions) and the imminence (an O'Reilly report in 2006 cannot be considered imminent for a action in 2009).

Second, there is a defamation of character, which even O'Reilly knows is almost impossible to prove in court, which is why O'Reilly can make these claims against Tiller even as he tries to attack others for making harsh claims about him. The standard for defamation concerns proving whether or not O'Reilly makes the claims with actual malice, "that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity." It does seem that Tiller would not want to try this route because the test concerns whether or not a person kills babies and this brings us back to the entire problem of the abortion debate: when does life begin, which no court will develop an answer.

Now, there may be some recourse through Civil Courts. In a way this will be the OJ route where a civil trial will work in place of a criminal or constitutional crimes. But I am not sure about this as it may lead to a chilling effect on political discourse. I would not know how a jury, even in Kansas, would respond.

harrogate said...

Interesting points you make here, important to consider. Certainly the issue of free will needs to be raised.

Although, like the bootstrap narrative, Americans' (and Harrogate, bred of the American air, definitely places himself in this category) absolute faith in free will comes off as rather obnoxious when we look closer. But we don't often look closer, nor, perhaps, should we.

Harrogate knows little about slander or defamation law, that's why he raised the question, to see if it would apply in this case. He thought the question of being a public figure made a difference.

So apparently we are left with a Rhetorical Situation where media figures, who have the benefit of a giant platform for all to hear, can throw around the term murderer as they see fit, and apply it to private ciizens, as they see fit.

And this is unassailable speech.

Such godlike power makes media consolidation even more fun for the winners, Harrogate supposes. Between Murdoch and Clearchannel and Disney, what the fuck is left. Talk about power.

Hmmm. Harrogate imagines a pundit on Fox or a radio talker obtaining information that a 22 year old woman had had, say, 3 abortions. And published her name and these facts. And called her a murderer over and over again.

That, too, apparently, is protected under the First Amendment.

solon said...

The distinction between a public figure and a private individual is a very important concept. I suggest you read, if only on wikipedia, NY Times v. Sullivan (about an ad in the Times that criticizes a public figure) and Hustler Magazine, Inc. v. Falwell, which Hustler lampoons Jerry Fallwell.

In the Times case, the public figure attempt to prevent important civil rights discourse by suing the NY Times, creating a "chilling effect" on speech, i.e. trying to stop people form speaking out on important issues. The Court rightfully sided with the Times as political speech and freedom of the press are too important.

In the Hustler case, the Court sided with Flint over a parody that suggested Fallwell had sex for the "first time" with his mother with in an outhouse. What was important in this case is that Fallwell was a public figure and the ad in question could be seen as a satire. (The ad satired a liquor campaign in which the liquor ad featured celebrities talking about their "first time" with the liquor.) Even though the Hustler ad featured a false statement, protecting the lampooning of a public figure is important for the free flow of ideas.

The important thing about the Fallwell case is that it was Jerry Fallwell and not his mother who brought up charges. Maybe Fallwell did so out of "manliness" and avoiding the shame of his mother filing the lawsuit. Yet, if his mother, who is not a public figure, filed the lawsuit, Hustler may have lost the case.

In this case, Tiller was not a private citizens, for better or for worse. Of course, if you are at the scene of an accident and a camera man takes a photo of you, and your mistress, you become a public figure because of your proximity to the accident. A person may not become a public figure because they choose to but because of the circumstances of his or her life.

As for the Fox anecdote on the end, a court may find that Fix acted with actual malice, intending to hurt the victim in question.

harrogate said...

"Of course, if you are at the scene of an accident and a camera man takes a photo of you, and your mistress, you become a public figure because of your proximity to the accident. A person may not become a public figure because they choose to but because of the circumstances of his or her life."

Wow. This, Harrogate did not know. Thanks for the info. And, heh: skeptical of free will though Harrogate has just revealed himself to be, this new info, of how one gets no control over whether or not one is considerd a public figure, pisses Harrogate off more than a little bit.

One question, though. Didn't the cirsumstances of Falwell's mom's life (as, after all, Falwell's mom) also make her a public figure then? Or, the circumstances of the cartoon appearing in Hustler?

Indeed, wouldn't there always be a way to "make" someone a public figure if a media outlet wanted to?

Finally, O'Reilly unleashed on NBC and Brian Williams tonight. Boy, beginning with Michelle Malkin, they are trying to get every bit of "parellel" mileage they can get, out of the military recruiter's murder.

solon said...

The public/ private distinction concerns circumstance and the literal distinction of being out in public or being out in the open or being called out in to the public without seeking it while trying to avoid the spotlight and not doing anything that is news worthy.

I think that there is a distinction between being in public, such as being in a photograph at the time of an accident, and being called into public, such as Mrs. Fallwell was with the Hustler ad.

I would need to check the case law on this but just because Tom Brady is famous does not mean that his mother is famous. You may be able to show her on television if she attends one of her son's games but you cannot wait for her outside her house unless she does something that causes her to be a public figure.

Fredrick Schwartz said...

My shyster buddies here in Hell say it's the same reason why the GITMO detainees can't be tried in the United States. The GITMO detainee trials would expose the US to having classified documents that might be damning. A civil trial might lead pro-Life groups to seek Tiller's medical records database to be open to their scrutiny and at trial made public. Tiller and the other doctors are bound by HIPAA to not allow that to happen for personal gain.