Let's just get this out of the way up top and say that I'm fully expecting this article to be overrun by the same type of folks who showed up after I criticized supposed "free speech warrior" Jordan Peterson when he filed a bullshit defamation case against a university after some of that university's employees suggested Peterson was similar to Hitler and compared him to a white supremacist. As we pointed out then, even if this was misleading, having someone have a negative opinion of you, and even suggesting you hold views you might not hold, is far from defamatory. And, suing someone for their opinion of you is very much the opposite of supporting free speech, and is an especially stupid look for people going around pretending to be free speech warriors.
And, now we have yet another similar case, this time involving Proud Boy founder Gavin McInnes suing the Southern Poverty Law Center for defamation concerning SPLC's practice of naming certain individuals and groups as "extremist" on its "Hatewatch" or "Extremist Files" lists. And, let's be clear: if you already love SPLC and hate McInnes, you're already going to think this is a dumb lawsuit. But this post is directed towards other folks as well: those who think SLPC has a bit of an itchy trigger finger in declaring someone part of a hate group (or declaring groups as hate organizations) and who actually believe (per McInnes' own claims) that he's not a racist, not a Nazi, and he's just a "humorist" promoting "western values."
If you believe that, then you have to throw out the "western value" of free speech under the 1st Amendment, because that's exactly what McInnes is attacking here, with the help of lawyer Ron Coleman. This is particularly disappointing, given that we've covered Coleman's legal work in the past, including his big trademark win for The Slants at the Supreme Court, noting that the US Patent and Trademark's office refusal to hand out trademarks based on its determination that a trademark could be "offensive" violated the First Amendment as a content-based regulation. Coleman has also been on the right side of crazy anti-free speech lawsuits in the past, including fighting back against Brett Kimerlin's famously vexatious lawsuits against critics. Of course, the fact that Coleman was part of the team who sued Google on behalf of Gab.ai for being kicked out of the Android Play Store was, perhaps, a warning that Coleman's view of free speech is a bit different than most 1st Amendment champions.
Let's be clear on this: the lawsuit is bullshit. And it seems likely to be thrown out. Unfortunately, it was filed in Alabama which has no anti-SLAPP statute, which is a reminder that (1) every state should have an anti-SLAPP statute and (2) we need a federal anti-SLAPP statute. However, the lawsuit itself is a joke. It is premised on the claim that even though SPLC's designation of a person or organization onto any of its lists is clearly a statement of opinion rather than fact, because SPLC is widely respected by some, that magically makes it defamatory. This is... what's the word again? Oh, right: nonsense.
What is relevant is that despite the considerable and substantive and justified assaults on its reputation, the SPLC Hate Designations are still so widely credited and so vigorously promoted by SPLC that they are commonly accepted, treated and understood as “official” and “factual” determinations in significant and influential ways, as intended by SPLC.
Mr. McInnes brings this action against SPLC for defaming him by use of the SPLC Hate Designations, and publishing other false, damaging and defamatory statements about him, as alleged in detail below; for its concerted, obsessive and malicious actions taken to “deplatform” Mr. McInnes; for its tortious interference with his economic opportunities; and for intentionally interfering with his contractual relationships by causing, inter alia, the termination of Mr. McInnes’s employment, an almost complete deplatforming and defunding and subjecting him to employment discrimination based on his lawful non-employment recreational activities.
You can certainly be concerned about the idea of "deplatforming" without trying to twist and misrepresent the First Amendment. But here, the lawsuit seems to suggest that an opinion turns to defamation if there are consequences from the opinion, due to the reputation of whoever is stating their opinion. Under such a theory, the NY Times should never write a negative review of a restaurant or movie ever again. A negative review of a movie might cause it to be "deplatformed" and removed from theaters faster (and perhaps not released on online platforms). To claim that this makes it defamatory is nonsense.
As if to demonstrate just how silly this lawsuit is, at one point Coleman is reduced to claim that a reference to McInnes "winkingly" making a statement is somehow false because McInnes, in fact, did not wink.
Though the Times article states that “Mr. McInnes has in recent years set himself apart from the current crop of professionally outraged right-wing pundits, not only for being able to spout aggressive rhetoric, but also for being willing to get physical at times,” it does not actually give an example of Gavin McInnes “getting physical,” instead stating, “like the president, he tends to publicly disavow all violence while winkingly insisting that he – and the Proud Boys – will never back down during a scrape.”
Mr. McInnes did not, in fact, wink while making that statement to the Times reporter.
When you're reduced to debating over the meaning of "winkingly" (note to Ron: it does not mean literally winking), you've already lost.
And, again, let's be clear: I actually think that the SPLC is way too quick in putting people and organizations on its list, and I also agree with the claim that too many people accept those lists as some sort of gospel "designation." But that doesn't change the fact that putting someone on such a list is an opinion, one that can neither be proven as "true" or "false" as a statement of fact would be. Indeed, this is part of the reason why we've long been concerned about hate speech laws, because determining what counts as "hate speech" is inherently a subjective opinion. And it's an opinion when SPLC does it, and even a negative opinion that has tremendous influence is still very clearly protected under the First Amendment.
The lawsuit struggles to focus on the impact of SPLC's opinions because that's basically all it has:
To that end, SPLC acknowledges that its goal is to destroy organizations and persons it targets as “hate groups” or as members of “hate groups” as a matter of “political struggle,” even if those targets do not qualify based on the broadly-understood definitions above.
Right, but that's the very nature of speech. The intent of free speech is to allow people and groups to try to persuade others of something. And, if that persuasion includes convincing others not to do business with you, that's fair game. It's that whole "marketplace of ideas" concept that defenders of McInnes regularly cite. Yet, here, McInnes and Coleman seem to be saying "fuck that" to the marketplace of ideas, and arguing that SPLC's just too damn good in the marketplace of ideas, and therefore needs to be censored.
What a bunch of hypocrites.
And, yes, the complaint literally admits that the listing is not a statement of fact, but of opinion. It includes an entire section entitled "Hate is in the Eye of the Beholder," which might as well be the heading on the motion to dismiss this nonsense as well. The complaint flat out admits that "hate" is a subjective opinion which by definition means that it's not defamatory.
If you can't read that section, it says:
“Hate” is in the Eye of the Beholder
While SPLC’s rhetoric routinely associates “hate groups” with actual “hate crimes,” SPLC has acknowledged that what it defines as “hate group” activity includes constitutionally protected “marches, rallies, speeches, meetings, leafleting or publishing,” and that the SPLC’s designation of a “hate group” “does not imply a group advocates or engages in violence or other criminal activity.”
Indeed, in a 2018 Washington Post article, SPLC President Richard Cohen admitted to journalist David Montgomery that it does not matter to SPLC whether the use of SPLC Hate Designations is accurate in terms of identifying conduct motivated by actual “hate,” because its use is part of SPLC’s “effort to hold them accountable for their rhetoric and the ideas they are pushing.”
This seems to imply a belief that no third party can call out activities by someone so long as those activities are "constitutionally protected." Which is nonsense. Filing a bullshit lawsuit is constitutionally protected, but I can still call it a stupid bullshit lawsuit without that being defamatory. Yet, this lawsuit appears to imply otherwise -- especially if a lot of people agreed with me that it was a stupid bullshit lawsuit (which you should, because it is).
Then there's a whole section mocking the SPLC for its fundraising activities, and how it uses its focus on declaring hate groups as part of that fundraising effort. And, sure, I actually fully agree that the SPLC deserves criticism and shouldn't be viewed as a definitive source of very much. But... none of that violates the law. Indeed, SPLC's speech is clearly protected speech under the 1st Amendment, even when I disagree with it. Honestly, so much of the complaint is just an angry screed about how McInnes (and Coleman?) doesn't like how the SPLC makes its lists and fundraises, and is especially annoyed that others take the SPLC list seriously.
So, hey guys, whatever happened to the "marketplace of ideas"? Don't like it? Go speak up about it, but don't fucking sue someone over their free speech.
Even the specific claims of defamation are pretty ridiculous. Take the first claim:
An article dated June 8, 2018 on the SPLC website by “Hatewatch Staff” entitled “Last Month in Europe: May 2018” bears the heading, “The following is a list of activities and events linked to American white supremacist, neo-Nazi, anti-LGBT, anti-immigrant and anti- Muslim groups and personalities in Europe.” The SPLC post described a May 6, 2018 event in London called Day for Freedom at which Mr. McInnes spoke, describing him as “Gavin McInnes, the founder of the Proud Boys*, which SPLC lists as a hate group.”
The asterisk in the sentence is, according to the article heading, an indication that the referenced organization is “listed” as a “hate group,” although the sentence also explicitly says, “which SPLC lists as a hate group.”
The June 8, 2018 article by SPLC Hatewatch Staff on the SPLC website is false and defamatory toward Mr. McInnes because it falsely ascribes to him characteristics of SPLC’s false description of the Proud Boys, when in fact the Proud Boys are not a hate group.
I'm almost embarrassed for Coleman, who surely knows better than this. The only statements of fact that they are complaining about are (a) that McInness is the founder of the Proud Boys (which everyone agrees is true), and (b) that SPLC lists the Proud Boys as a hate group. But that's also true. SPLC does list the Proud Boys as a hate group in its opinion, and the complaint itself already admits that this is a statement of opinion. So, how is that defamatory? Answer: it is not.
Later on in the complaint, it states that an article with this sentence is defamatory:
“The Trump-inspired ‘Proud Boys,’ called the ‘Alt-Light’ by some and always seeming to be looking for a rumble, may or may not show up in sizeable numbers, although the group’s founder, Gavin McInnes, says he fullheartedly supports the rally.”
What's "defamatory" there? I kid you not:
...is false and defamatory toward Mr. McInnes because it falsely ascribes to him characteristics of SPLC’s false description of the Proud Boys, which is not “always looking for a rumble.”
I mean, that's not even accurately quoting the original article, which notes that they are "always seeming to be looking for a rumble" which makes it obviously a statement of opinion, not to mention rhetorical hyperbole.
There's a lot more like this and each one looks dumber than the previous one -- though I wonder if Coleman will now argue that that is defamatory.
Anyway, if you're concerned about the nature of "deplatforming" and you hate the SPLC and you think Gavin McInnes is the new Lenny Bruce, you should still not be happy about this lawsuit. The theories in this lawsuit are nonsense, taking statements they admit are opinion and pretending that the impact of those opinions magically makes them defamatory -- which is not how any of this works. It also seems to take non-defamatory, truthful statements of fact (such as that the Proud Boys have been called a hate group by the SPLC -- which is an accurate statement of fact whether or not you agree with the SPLC's opinion) and trying to twist that into being defamatory.
Coleman has done good work in the past, but this is an embarrassment. Of course, perhaps it's not as embarrassing as recognizing that under his own wacky legal theory, it would appear that Coleman himself regularly "defames" others:
Surely not! pic.twitter.com/YL6tozJVOR
— Aviator::Operator (@AvOpJGA) February 4, 2019
