Schadenfreude Is Not A Free Speech Value

Let he or she who has not gloated at the misfortune of the wicked throw the first stone!

Not many of you should be throwing, because I'd wager that most of you, like me, secretly snicker when the awful are made to feel awful by circumstance.

But in the free speech arena, we can't afford to applaud the legal reversals suffered by assholes. We have to sigh, cowboy up, defend the loathsome from censorship, and question judgments and convictions they sustain.

Here are two examples.

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

I previously named Girls Gone Wild founder Joe Francis as an example of someone I would not defend. It's not that I think he's not entitled to a legal defense. I have nothing against anyone who chooses to represent him. It's just that he's an example of someone I find so unutterably vile that my revulsion would interfere with my effectiveness as an advocate.

Now Joe Francis — who is himself no more than a fair-weather friend of free speech — has been hit with a $40 million judgment in a defamation suit by casino boss Steve Wynn. Francis apparently claimed that music producer Quincy Jones told him that Wynn talked about having Francis killed and buried in the desert. Jones testified that he never told Francis anything of the sort. This led the L.A. County jury to award Wynn $20 million in compensatory damages (which was $8 million more than Wynn ever asked for) and later $20 million in punitive damages.

Defamation judgments can be censorious in both a qualitative and quantitative manner. I don't find it even a little bit difficult to believe that Francis maliciously lied about Wynn. I do, however, find it difficult — if not impossible — to believe that Wynn sustained $20 million in damages. After all, (1) even Wynn wasn't asking for nearly that much, (2) it's hard to believe that anyone would take anything Francis said seriously enough to think less of anyone else as a result of it, (3) hasn't everyone fantasized about killing Joe Francis and dumping him someplace unpleasant, and therefore why would you think less about Wynn if he had mused about it, and (4) nothing in any of the coverage I've seen suggests that Wynn offered any evidence of actual hard damages (loss of business, etc.). Also, punitive damages pose due process concerns; this award seems uncoupled from either harm or Joe Francis' assets. This seems more like an effort by the jury to quantify, to the extremely limited ability of our primitive mathematics, the question "how much of a stomach-turning douchebag is Joe Francis?"

Ridiculously gigantic awards can punish and chill free speech. Imagine that I sued you for calling me a snarky, opinionated asshole who once kicked a dog. Imagine that the jury was instructed that the first parts were opinion and immune from suit but that the dog part might be defamation. Imagine that the jury awarded me $eleventy million because you accused me of kicking the dog. Yes, you have been deterred from making knowingly false or reckless statements of fact. But you've also been deterred from criticizing me at all, as has everyone else who hears about the verdict.

Free Joe Francis! Hopefully the judge or appellate court will reduce the award to something more rational. Then we can keep hating him unabated, and he will have a bit more money left, which with any luck he will use to render himself mute and incontinent through an accident involving expensive cars or designer drugs or bungee-jumping or something.

Andrew Shirvell: One Part Stalkerish, One Part Defamatory, Several Parts Just A Freakish Asshole

Weeks ago I noticed in passing the $4.5 million judgment awarded against Andrew Shirvell, the former Michigan Assistant Attorney General who became a bizarrely obsessed stalker and badmouther of University of Michigan student Chris Armstrong, nominally because Shirvell believed that Armstrong was using the student government of his alma mater to push some sort of gay-Nazi-orgy agenda on hapless and tender undergraduates.

As per usual with any case with a theme more complex that "teen mom stabs sex tot," the media coverage of the trial and verdict sucked. It made it impossible to determine what specific statements attributed to Shirvell led to findings of defamation.

So, naturally, I resorted to PACER.

PACER documents leave me convinced that (1) Shirvell is a scary-ass nut with Serious Issues, (2) Shirvell said some things which seem genuinely defamatory — that is false harmful statements of fact, and (3) Shirvell said many things that seem to me to be within the broad scope of protected statements of opinion rather than statements of fact.

If you are interested, you can check out Armstrong's complaint (which is attached to Shirvell's notice of removal to federal court). It complains about both statements of fact that are susceptible to defamation analysis (like claims that Armstrong had sex in a church and a playground) and statements of hyperbole or opinion (like "Defendant falsely and maliciously stated that Plaintiff is Satan's representative"). The jury form shows that the jury was handed a bewildering array of statements potentially classified as defamation, intentional infliction of emotional distress, or invasion of privacy through placing Armstrong in a false light. The list includes statements of fact that can be proved false, and apparently were (like allegations that Armstrong hosted an orgy in his dorm) to statements which seem to be opinion, hyperbole, or characterization that are very questionably listed (like statements that Armstrong "spit in the faces" (metaphorically) of minority students, or that "he's acting like a gay Nazi" and "the persecution of the believers will begin in earnest now").

This is disturbing. The evidence — for instance, evidence adduced in Armstrong's opposition to Shirvell's Motion for Summary Judgment — paints Shirvell as a stalker who would say anything to lash out at Armstrong. But when courts and juries conflate false statements of fact with hyperbole and opinion, however vile, the result is harmful not just to nutjobs like Shirvell, but to First Amendment jurisprudence. Just as the Francis jury seemed to throw up its hands and assign a number based on their entirely understandable visceral disgust at Francis, the Shirvell jury seemed to say "eh, close enough" in distinguishing actionable defamation from protected opinion.

I'm not sorry that Francis or Shirvell got hit with judgments. I am concerned, though, that they got hit with judgments that seem to be premised as much in anger as in principled application of the law.

Last 5 posts by Ken White


  1. 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.

  2. 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?


  3. 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.

  4. 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.

  5. 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).

  6. 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?

  7. 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.

  8. 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.

  9. 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?

  10. 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.

  11. 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.

  12. 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.

  13. 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?

  14. 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.

  15. 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.