Schadenfreude Is Not A Free Speech Value

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21 Responses

  1. M. says:

    Can't we snicker and then help them?

  2. Grifter says:

    If I end up posting this twice, sorry, but it seems to have vanished the first time I hit submit…

  3. eddie says:

    The Joe Francis Jury Probably Couldn't Spell "Googleplex."

    Neither can you, unless you meant to refer to the Mountain View headquarters of a certain Internet technnology company.

  4. Ken says:


    Every time I make a spelling joke at my own expense everyone assumes its a spelling error.

  5. different Jess says:

    (I'm asking because IANAL and I had had a different understanding of how trials work.)

    For the Shirvell case, are there court documents that say, in effect, "these statements by the defendant [which Ken at Popehat finds to be of opinion], in addition to these other statements [which Ken at Popehat finds to be of fact], are false statements of fact and thus defamatory", or is it the case that many statements were attributed to Shirvell, and the jury said that one or more of those met the qualifications for defamation?

    Do juries typically write an essay defending their reasoning? I had thought they turned in verdicts of one or two words. That would leave the creation of dire precedent for appellate courts. Or did the trial judge in this case rule that all the statements were of fact? Wouldn't that normally be for the jury to decide? Can anything that happens at the trial level affect precedent, or is this more of just a bad thing that the court did, which we can expect other courts to do also?


  6. Gavin says:

    I completely understand what you mean, that allowing holes in the core freedoms at all can eventually lead to the breaking down of them altogether. But that other part of me, that snickering part you mentioned, thinks that it's mostly just their rejection of the "don't be a dick" philosophy of life. Do you think it would so easily end up being a tool used against good meaning people? I think the nature of these individuals informed the Jury more than their actions.

    On the one hand, that is wrong and a miscarriage of justice, on the other, I guess it doesn't matter when the first hand is weighed so heavily.

  7. b says:

    It sucks to, well, have to suck it up and be the adult. But Ken is exactly right. "First they came for the a*holes."

    In another sense, this isn't only about free speech jurisprudence but about any sort of legal process in which animus on the part of the jury or repulsiveness on the part of one party replaces proper, precise, and professional arguments and documentation.

  8. Gavin says:

    If we ever found a way to accurately gauge "dickishness" beyond just human subjectivity then I'd be happy to get some new laws on the books for breaching certain threshholds (of dickishness, of course).

  9. David says:

    I was under the impression that the Shirvell case was about harassment, made worse because it was committed by a public employee, rather than pure libel. Was that not a factor in the judgment?

  10. nlp says:

    Isn't the judge supposed to dismiss items that would be considered opinion rather than defamatory? The defense lawyer needs to file the motion, of course, but wouldn't that normally be the procedure? (I will accept that in the Shirvell case nothing is actually normal).

    I also hadn't realized that Shirvell had a history of odd behavior. I thought that he felt threatened by Armstrong (for whatever reason) and was surprised that odd behavior had been noticed before this.

  11. TTC says:

    From the title, I thought this post about going to be about the Pakistani protester that died from inhaling the fumes from burning American flags

  12. En Passant says:

    Ken Sep 17, 2012 @8:01 am:

    Every time I make a spelling joke at my own expense everyone assumes its a spelling error.

    There only doing what is rite in they're on minds.

  13. James Pollock says:

    Ken, you say Wynn didn't seem to have any damages, but isn't actual economic damage one of the elements of slander/libel? And isn't it academic, since Mr. Francis does not have $40 million?

  14. Roscoe says:

    Ken – I refuse to allow the joy I feel about this scumbucket (I am talking about Francis, I don't know anything about the other guy) getting whacked to be diluted by any higher thoughts about public policy, for a number of reasons:

    1. First off, I am less than certain that the damage award was "ridiculously gigantic." Wynn is sitting on top of a billion or so in casinos. He has to keep these casinos filed with happy customers, who might be less inclined to visit a casino owned by someone who kills people and buries them in the desert. Francis' slander reached a wide audience, it was even broadcast on Good Morning America. So how much advertising does a guy have to do to offset the wide spread perception that he is mobbed up? Especially in light of the fact that we are all preconditioned to believe that Vegas moguls are mobbed up?

    2. It's just a trial verdict. The outcome isn't binding on any other court. In fact, it's not even a lower court decision, it is just a jury verdict. A jury verdict is meaningless to other courts except with respect to very narrow legal issues.

    3. Francis (I presume) has adequate representation (although maybe not, given his criminal trial defense). He has his rights to appeal. There are plenty of other people who get screwed by the system with a lot less recourse than he has.

    So its all happy, happy, joy, joy around here.

  15. AlphaCentauri says:

    True, when it comes to a casino owner, claiming he said, "I will kill him and bury him in the desert" is whole lot different than claiming, "I will have him killed and buried in the desert." A reputation for having mob connections could affect his ability to build casinos in new jurisdictions.

  16. scable says:

    I have an OT question. I know two people who mediated a 10,000 or less claim between parties. Settled. But the lawyers wracked up $100,000 in fees in one case and over $250,000 in the other. Then they have gone to court to garnish wages and seize middle class income property. Driving said middle class people into bankruptcy and poverty. Is this a common practice in law? Why do judges allow this? I noticed the recent Brett Kimberlin fiasco and now this. I am starting to think most judges in the country are just crap.

  17. Gavin says:

    Here's a recent case where a person got jailed for saying something on Facebook.

    It made me think of this. I mean, the post she made was:

    "My dumb (expletive) got a dui and I hit a car…lol,”

    Which is a pretty dumb statement as is and certainly doesn't seem to include the damage to the four teenagers in the other car or that it was a hit and run (she sounds like a winner!). But she was court ordered to disable her facebook account for saying this and because she didn't she was jailed for two days for contempt of court.

    Is there a law that can allow a court to order someone to disable their facebook account? I understand perhaps discussing a court case resulting in contempt, but ordering her to stop using facebook?

  18. Gavin says:

    I mean the above as a more common example of someone who did something pretty deplorable who gets a stronger than legal response. The people in the article listed are well known assholes. But the fact is that one bad day can put any of us in that "asshole" category and result in unfair punishment.

  19. NL_ says:

    I realize this post is a week old but I just read it and it leaves me wondering why libel, defamation and lies might be actionable but other speech might not be. At some point it just comes down to an arbitrary line where people say "lies are more damaging because third parties are more likely to be persuaded" whereas "negative opinions are less persuasive and less deceptive." Like some sort of consumer protection law for consumers of other people's speech.

    I guess I'm just not so sure that hateful and mean statements of opinion ("I hate Joe Smith, that motherfucker makes shitty tables and I hope his carpentry business fails and he dies penniless") are benign enough to be legal, but knowingly fraudulent statements ("I saw that Joe Smith uses cheap plywood to make tables supposedly made out of oak, so you should stop buying from him") have to be illegal. Seems like they're both statements and it's arbitrary to say that spewing hate is fine but spewing lies is possibly actionable. I know gossip itself isn't necessarily actionable, so assume that both statements were published and were intended to harm Joe Smith's reputation.

    Why does a knowing lie make something legally actionable? If somebody kept calling Joe Smith profane names in public forums, I imagine it would hurt his reputation even without lies about his business practices. It seems arbitrary to say that intentional lies are not protected but intentional profanity is protected.

    Just feels like it all ought to be legal, even if both of them are in my opinion bad things to do. I guess I'm a little extreme on the libertarian spectrum. I also have trouble seeing how blackmail can be illegal without hypocrisy; if it's legal to not say something, then I believe it should be legal to be paid not to say something. Just like with sex and prostitution, or organ donations, the act of money changing hands doesn't make an acceptable act an unacceptable act.

    The main problem with blackmail (admittedly, speaking as somebody without the assets or the secrets necessary to attract blackmailers) is that it's awfully hard to write a binding contract for something that's illegal. You won't get blackmailers essentially signing contracts admitting to their crimes. But conceptually it's really no different from a typical NDA. And that would prevent blackmailers from coming back to the well for additional payments. The main hurdle is drafting the NDA in a way that it doesn't expose the secret to the drafters but still protects the secret. The second hurdle is probably finding a way to make sure the blackmailer isn't judgment-proof (e.g. by spending the blackmail in the first year, then being penniless and blabbing the secret anyway – with no assets to take).

    Sorry; wrote way too much, way too late.

  1. September 17, 2012

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