Students and faculty who find themselves defending their own free speech rights sometimes ask FIRE if they should pursue claims against their critics or detractors, whether through defamation lawsuits or formal complaints to administrators.
This strategy, often cast as a way to fight back against criticism, seems increasingly in vogue, on and off campus. Take, for example, a professor’s lawsuit against DePaul over a faculty committee’s resolution condemning his column on the Israeli-Palestinian conflict, former White House Director of Communications Anthony Scaramucci’s threat to sue a student newspaper for saying he sold his soul, or ProctorU’s threat to sue a faculty association that criticized the company’s software.
FIRE generally cannot advise on the viability or utility of these claims. (Our focus is on protecting speech rights — not deciding who is right or wrong.) We view these efforts as often counterproductive and, at worst, another way to effectuate the very censorship we oppose.
There are a number of reasons why these efforts are generally unsound responses to censorship or criticism in the campus context:
- Defamation is a very narrow category of unprotected speech. While defamatory speech is generally not protected by the First Amendment, that exception is extremely narrow and subject to a wide range of procedural and policy-based limitations. A great deal of speech that people perceive to be false or insulting does not amount to unprotected defamation. For example, rhetorical hyperbole
(Scaramucci “sold his soul”), insult, opinion (such as generalized statements that a person is “racist,” hateful, or otherwise bigoted), opinion based on disclosed facts or otherwise not provably false (Carl Sagan is a “butt-head astronomer”) are all generally protected. Speech is only defamatory, and thus unprotected, if it is a provably false statement of fact made with the requisite level of fault. In many cases (specifically cases involving public officials or figures), that may require a showing of actual malice — that is, that the speaker knew the statement was false or subjectively “entertained serious doubts” about the truth of the statement but published it anyway. This is a very high (but not impossible) standard to meet.
- Suing over speech is a form of censorship. Whether or not you think it may be justified, there is no getting around the fact that when you sue for defamation, you are asking a court to rule that your critics’ speech is unlawful and that the state compel them to surrender money or property to you for that speech. By doing so, you may also be ceding the moral high ground: If you believe your own freedom of speech has been violated, people are less likely to be receptive to your argument that your speech deserves protection if you’re actively working to erode those rights for others — which many defamation lawsuits do by targeting non-defamatory, protected speech.
- Defamation claims are rarely compatible with the purpose of a university. Academic institutions are, to generalize, dedicated to the search for truth. That is accomplished through “sifting and winnowing” — the exchange and vetting of ideas. Turning to administrators or courts to determine winners and losers may be in tension with those principles. That is particularly so where a plaintiff seeks to hold the institution liable for the speech of its students or faculty members, who may not have money or property to recover in a successful lawsuit, making the university’s endowment a tempting deep pocket. That strategy incentivizes educational institutions to censor speech as a means of avoiding potential liability or demonstrating that they took efforts to suppress the speech at issue.
- It exposes you to significant financial risk. Even if a lawyer takes your case on contingency (meaning you’re not paying their hourly rate), your case might start in — or be moved to — a jurisdiction with an anti-SLAPP statute, which provides a mechanism for courts to dismiss lawsuits involving protected speech. If so, and if it’s successfully used to dismiss your case, you could be required to pay the attorneys’ fees of your critics.
- It exposes you to reputational risk. Filing (or even threatening) a lawsuit may draw wider public attention to your critics. That’s particularly true if your threat or lawsuit makes dubious claims. Efforts to suppress speech often lead to wider attention to that speech — a phenomenon known as the Streisand Effect.
None of this means that there are no circumstances in which a defamation claim might be meritorious or warranted. But the situations in which they are not far outnumber those in which they are. If you’re thinking about suing your critics or asking your institution’s administration to punish them, you may want to reconsider. Your chances of success may be limited, and you may abandon the moral high ground in the process.
FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If your rights are in jeopardy, get in touch with us: thefire.org/alarm.