CHAPTER 40

• Jurisdiction: United States

CHAPTER 40

Defamation Law Is Being Weaponized to Destroy the Global #MeToo Movement: Can Free Speech Protections Help Counter the Impact?

David B. Oppenheimer¹

On March 29, 1960, a full-page ad appeared in the New York Times seeking support for the civil rights movement. Signed by sixty-four well-known Americans, including Eleanor Roosevelt,² the ad also listed sixteen Southern civil rights leaders, most of them ministers, who endorsed the appeal and the request for financial help to continue their work. It appeared in the name of the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South."

The ad, titled "Heed Their Rising Voices," described a "wave of terror" wrought by police and local governments to suppress the efforts of civil rights leaders in Orangeburg, South Carolina; Montgomery, Alabama; Tallahassee, Florida; Atlanta, Georgia; and several other Southern cities. The third paragraph of the ad read, "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission." Each of these statements except the claim that the dining hall had been padlocked was partly true, yet in some manner inaccurate. For example, the students sang the Star-Spangled Banner (the U.S. national anthem), not "My Country 'Tis of Thee."

Less than a month after the ad was published, L.B. Sullivan, an elected official in Montgomery charged with supervising the police and fire departments, filed a defamation action against the New York Times and four of the Alabama ministers who were listed in the ad.³ Although Sullivan was not named in the ad, he claimed that the ad referred to him in describing the efforts of the police to suppress the civil rights movement. Within a month, Alabama Governor John Patterson brought an identical suit, and added Rev. Dr. Martin Luther King, Jr. as a defendant. Three other public officials, including the mayor of Montgomery, also brought cases.⁴ Each sought $500,000 in damages.

Because the United States (along with the vast majority of the English-speaking world) had adopted the English common law, the plaintiffs would have to prove only that the advertisement described them and hurt their reputations. Beyond that, the burden of proof would be placed squarely on the defendants. Rather than requiring the plaintiffs to prove the statements were false, the defendants—Dr. King, the New York Times, and others—had to defend themselves by proving affirmatively that the statements were true.⁵

The case was tried in the state court in Montgomery before a judge famous for his opposition to civil rights. The courtroom was segregated, the jury allwhite.⁶ The jury found in favor of Sullivan and awarded him the $500,000 he sought.⁷ It was the largest libel verdict in Alabama history,⁸ roughly equivalent to $4 million today.⁹ A few months later, in the case filed and won by the mayor, another $500,000 was awarded.¹⁰

Without the news coverage that galvanized support for the civil rights movement, it's hard to imagine the movement succeeding. Emotional narratives, shocking photographs, and horrific TV film helped bring the dehumanizing treatment of Black Americans into homes across the country. Now, suddenly, the ability of the nation's leading newspapers to report on the civil rights movement had been called into question, threatening the movement as a whole. If the verdicts against the Times were allowed to stand, none of the major newspapers or television networks in the United States could have risked continuing to cover civil rights. The potential of facing a lawsuit for any error, or alleged error, would have been too great. As a result, the Sullivan verdict, and those that followed, represented a grave threat to the success of the civil rights struggle of the 1960s.

The Sullivan verdict was appealed to the Supreme Court of Alabama, which affirmed the judgment.¹¹ But the U.S. Supreme Court agreed to hear the case, and it overturned the Alabama judgment based on the Free Press and Free Speech provisions of the U.S. Constitution. The Supreme Court held that, unless the plaintiff could prove that the defendant acted with "constitutional malice"—that is, with knowledge that the statement was false or reckless disregard for whether it was true or false¹² —states could not impose liability on those accused of defaming a public official.

In 1974, the Supreme Court further extended protections for defendants accused of defamation. It ruled that defamation liability could not be based merely on the publication of a false and injurious statement. Instead, the court held, the plaintiff must prove at least negligence.¹³

This rule was further extended in 1986 to shift the burden of proving falsehood in all defamation cases, even in cases of defamation between private persons on private matters, at least where the defamation concerned matters of public interest, like civil rights.¹⁴

These rules provide a vigorous constitutional free speech defense in defamation cases. As such, they are an important bulwark serving to protect against defamation suits brought to silence women reporting sexual harassment and assault. The weaponization of common law defamation claims in the United States has thus been restricted, protecting the #MeToo movement.

I first discovered the power of these constitutional free speech rules when I represented the defendant in a defamation case that was a precursor to the #MeToo movement. In 1984, the Santa Cruz Women Against Rape (SCWAR) received a phone call from a nineteen-year-old woman who reported that she'd been the target of an attempted rape and sexual assault by two co-employees.¹⁵ She reported to SCWAR that she had voluntarily gone out with the two men and drank with them, but after she passed out from intoxication, they partially undressed her and touched her sexually. She believed they stopped because she woke up and stopped them from proceeding further. The SCWAR counselors, based on their training and experience, believed that her account was truthful. They discussed her options, including an offer to accompany her to make a police report, but the survivor decided not to go to the police.

From time-to-time, SCWAR published a newsletter and posted copies throughout the community. These newsletters reported sexual assaults in the region. SCWAR offered to publish the details of the woman's experience in the newsletter, and she accepted. So, in its next issue, the newsletter described what she had reported, and provided the names, descriptions, and contact information of the two men, under the heading "assault/attempted rape." One of the accused men brought a defamation lawsuit against SCWAR.¹⁶ SCWAR retained Leslie Levy, a celebrated feminist lawyer in Oakland, California, to represent them. When it became clear that they case would not be settled, Levy invited me to join her in representing SCWAR at trial.

At trial, we lost. The jury awarded the plaintiff $7,500 in compensatory damages, and $25,000 in punitive damages. But the California Court of Appeal, relying on the constitutional free speech defense, overturned the jury's verdict. The Court of Appeal ruled that the trial court made two mistakes. First, the judge should have required the plaintiff to prove that SCWAR was at least negligent as to the truth of its report before it permitted the jury to consider compensatory damages. Second, the Court of Appeal said, the judge should have required the plaintiff to prove that SCWAR believed the statements in the newsletter were false, or that SCWAR was reckless regarding the statements' truth or falsity, before permitting the jury to consider punitive damages.¹⁷

Absent that constitutional free speech defense, SCWAR and other...