helpful to ordinary people whose reputations are attacked unfairly.
Unpredictability
People say and write defamatory things all the time, but only a very few are threatened with defamation. Sometimes gross libels pass unchallenged while comparatively innocuous comments lead to major court actions. This unpredictability has a chilling effect on free speech. Writers, worried about defamation, cut out anything that might offend. Publishers, knowing how much it can cost to lose a case, have lawyers go through articles to delete anything that might lead to a legal action. The result is a tremendous inhibition of speech.
Complexity
Defamation law is so complex that most writers and publishers prefer to be safe than sorry, and do not publish things that are quite safe because they’re not sure. Judges and lawyers have excessive power because outsiders cannot understand how the law will be applied. Those who might desire to defend against a defamation suit without a lawyer are deterred by the complexities.
Slowness
Sometimes defamation cases are launched years after the statement in question. Cases often take years to resolve. This causes anxiety, especially for those sued, and deters free speech in the meantime. As the old saying goes, “Justice delayed is justice denied.”
Defamation law definitely affects the mass media, having a chilling effect on free speech. There is a direct chill when stories are changed or spiked. More deeply, there is a structural chill when areas are not investigated at all because the risks of libel suits are too great.[2]
The examples in this chapter are Australian, where defamation laws are notorious for their severity and their use against free speech, and where there is no clear constitutional protection for free speech. In the US, things would appear to be better, with explicit constitutional free speech protection and a public figure defence against defamation. But the US legal system can still be used against those who speak out. In the early 1980s, two Denver University academics — law professor George Pring and sociology professor Penelope Canan — joined together to investigate a rash of cases in which legal charges were made against citizens who spoke out in one way or another.[3] For example, citizens
testified at a hearing about a real estate development
wrote a letter to the Environmental Protection Agency about pollution
made a complaint about police brutality
collected signatures for a petition
reported law violations to health authorities.
In these and many other such cases, the citizens were sued by the real estate developer, the company complained about to the EPA, the member of the police, etc. The most common charge was defamation, but also used were business torts (such as interference with business), conspiracy, malicious prosecution and violation of civil rights. Pring and Canan dubbed these cases Strategic Lawsuits Against Public Participation or SLAPPs. These suits have very little chance of success and in practice very few actually succeed. However, they are very effective in scaring the targets, most of whom become much more cautious about speaking out.
Pring and Canan realised that a key to resisting SLAPPs was constitutional protection for the right to petition the government — an often overlooked part of the first amendment to the US Constitution. By emphasising the free speech and constitutional aspects of these cases, and just by calling them SLAPPs, it is much easier to resist and sometimes to win suits against the SLAPPers for malicious prosecution. Pring and Canan’s book is an essential guide for anyone threatened with a SLAPP. Yet the very prevalence of SLAPPs in the US shows that constitutional protection alone is not enough to prevent the use of the law to suppress free speech. For the reasons outlined here, such as complexity and cost, the legal system is a battleground that is biased in favour of those with more power and wealth. Greater formal protection by the law does not necessarily translate into greater freedom of speech in reality.
Media power and defamation
One of the best responses to defamatory comments is a careful rebuttal. If people who make defamatory comments are shown to have gotten their facts wrong, they will lose credibility. But this only works if people have roughly the same capacity to broadcast their views.
Only a few people own or manage a newspaper or television station. Therefore it is difficult to rebut prominent defamatory statements made in the mass media. Free speech is not much use in the face of media power. There are cases where people’s reputations have been destroyed by media attacks. Defamation law doesn’t provide a satisfactory remedy. Apologies are usually too late and too little to restore reputation, and monetary pay-outs do little for reputation.
Most media organisations avoid making retractions. Sometimes they will defend a defamation case and pay out lots of money rather than openly admit being wrong. Media owners have resisted law reforms that would require retractions of equal prominence to defamatory stories.
By contrast, if you are defamed on an electronic discussion group, it is quite easy to write a detailed rebuttal and send it to all concerned the next hour, day or week. Use of defamation law is ponderous and ineffectual compared to the ability to respond promptly. Promoting interactive systems of communication as an alternative to the mass media would help to overcome some of the problems associated with defamation.
