SLAPP Suit In Virginia Tries To Silence Historian Highlighting Ancestry Of Guy Suing To Keep Confederate Statues In Charlottesville

from the free-speech? dept

Another day, another attempt by someone to silence people for saying something they don't like. The latest is a history professor, who was briefly quoted in an article about another lawsuit. That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia. One of the plaintiffs in that case is Edward Dickinson Tayloe II. The article, written in the publication "C-Ville" (as you've figured out, a publication about Charlottesville) goes a bit into the history of the Tayloe family -- which goes back centuries in Virginia and apparently includes cotton plantation (and slave) owners.

The article contains two quotes from UVA history professor Jalane Schmidt. In the introduction to the article, she is quoted as saying the following about those who were suing to prevent the removal of Confederate monuments:

“You’ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,” says activist and UVA professor Jalane Schmidt.

Later, in the section about Tayloe, she is quoted again:

Says Schmidt, “For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.”

This comes after multiple paragraphs describing, in fairly great detail, the history of the Tayloe family and what one might easily consider to be cruel treatment of slaves. It also includes slightly more recent history, regarding Tayloe's father, who, as the article notes:

... was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.

Tayloe, it seems, was not happy about the article. So he sued C-ville, the reporter on the article (Lisa Provence), and Jalane Schmidt, the history professor. As the case is in a local Virginia court, the records are not as readily available as federal cases. However, the ACLU of Virginia has stepped in to defend Schmidt and has filed quite the response to what seems clearly to be a typical SLAPP suit -- seeking to silence someone for stating things you don't like.

As the filing notes, nothing in either of Schmidt's quotes is defamatory -- and, the filing claims, the complaint makes no effort at all to even show what statements are false statements of fact:

Plaintiff fails, as a threshold matter, to specify which of Professor Schmidt's words are allegedly defamatory.... Rather, he states that the alleged defamation occurs in the "implications" arising from the article.... Regarding Professor Schmidt's comment about the Tayloe family "roiling the lives of black people," Plaintiff takes issue with the context of the quotation ("Schmidt's assertion is offered without refutation or counterpoint") but fails to explain why the statement in and of itself is defamatory or has a defamatory implication

Ken "Popehat" White famously says that "vagueness in legal threats is the hallmark of meritless thuggery," and that appears to be the case here. Schmidt's quotes seem clearly to be giving her take -- her non-defamatory opinion -- on the history of Tayloe's family. Tayloe may not like that, but as an apparently proud American, he might want to thank the First Amendment for allowing that kind of free speech.

There is much more in the response, which you can read below, but this case should easily be tossed out. Even if someone were to make the case that the statements at issue were factual defamatory statements towards Tayloe, Tayloe would need to prove "actual malice" -- meaning that Schmidt knew the statement was false (which, she doesn't, since she stands by her words) or that they were made with "reckless disregard" for the truth. While the suit suggests that a failure to get Tayloe's side of the story is evidence of such negligence, that is not the standard at all, and there is no such requirement.

Thankfully, Virginia has a recently updated anti-SLAPP law that is now deemed to be "adequate" by the Public Participation Project (which advocates for better anti-SLAPP laws). Virginia's law should be a lot better and has some flaws, but hopefully it will be applied here. Schmidt and the ACLU of Virginia are seeking attorneys' fees under the statute, and hopefully they will succeed.

Notably, Schmidt has also written up a blog post for the ACLU talking about the chilling effects of these kinds of SLAPP suits.

Tayloe’s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation.

[....]

History belongs to everyone, not just scholars. Marginalized narratives of vulnerable groups of our community must be included in our collective story in order to inform our efforts to make changes in the present and to promote a more just and equitable future. First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.

Some may argue that there is nothing exceptional about this particular SLAPP suit. It appears similar to many others that we write about here on Techdirt. And that's a big part of the problem. These kinds of lawsuits create massive chilling effects, even if they won't win in court. It's also why we need much stronger anti-SLAPP laws, both at the state level and at the federal level. These kinds of lawsuits keep getting filed because the lawsuit alone is all too frequently enough to stifle critical voices.

Filed Under: 1st amendment, anti-slapp, charlottesville, confederate monuments, edward tayloe, free speech, jalane schmidt, slapp, virginia
Companies: c-ville

Defending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End Result

from the theater-for-fire-shouters dept

A weekend full of ugliness has resulted in the predictable: calls for the government to step in and do something about "hate speech." For some reason, a bunch of people decided the removal of a statue commemorating the loser of the First American Civil War was something they simply couldn't abide with, even though the "history" they were seeking to "preserve" generally celebrates the last holdouts against the abolishment of slavery.

It's not as though they were seeking to preserve history a government might feel like erasing. No one involved in the protest of the Robert E. Lee statue removal sought to build the US equivalent of the Holocaust Museum and needed the stone homage to serve an appropriate place of dishonor among the rest of the relics. This devolved into violence -- first hand-to-hand altercations, but later involving a vehicle driven directly into a crowd of counter-protesters, resulting in multiple injuries and one death.

While the president issued a tepid "hate and violence are bad" statement, people all over the internet were taking this as an indication free speech in this country has gone too far. (His second statement, delivered two days later, was much better.) Predictably, those attacking entities like the ACLU (which defended the white nationalist assemblage's right to hold a protest of the statue's removal) were mainly interested in shutting down speech they didn't like, while somehow preserving the sort of the speech they did like.

Glenn Greenwald has a long post at The Intercept detailing the misguided attacks on the ACLU as a result of its defense of the white nationalist protesters. As he points out, the left -- despite its reputation for tolerance of all races, creeds, colors, and sexes -- is a frequent supporter of government regulation of speech. Many on the left still cling to the mistaken belief the government has already outlawed "hate speech," when it has done nothing of the sort.

Those on the right would like to see the ACLU kicked out of Constitutional discussions as well. Greenwald notes the ACLU has been similarly attacked for such things as arguing for due process rights for accused terrorists.

The problem is: rights are rights. Those availing themselves of Constitutional rights usually aren't sympathetic protagonists. But it's the worst of the worst that need defending. No one starts throwing around stupid legislation when tepid, middle-of-the-road statements are made. No one fires off bogus lawsuits when unoffensive statements are delivered.

Many on both sides -- right and left -- find this concept hard to grasp. Some people believe there's a legal bright line between speech and hate speech, when in most cases, it's just a subjective measurement of how much these people empathize with the disputed statements. Hypocrisy abounds. Unfortunately, hypocrisy isn't limited to the rank-and-file. Legislators are able to at least threaten serious damage to the First Amendment by writing and sponsoring bills targeting the "worst of the worst." But most are written so broadly and badly, they can't survive a constitutional challenge.

Even our president partakes in the speech hypocrisy. He has threatened to open up libel laws and refers to any source of info he doesn't like as "fake news." But he still enjoys the First Amendment protections he's reluctant to extend to his opponents, even as he extols police brutality or encourages supporters to attack protesters.

That the worst speech needs the most defending isn't news to anyone here at Techdirt. This point has been made repeatedly. But every time something like what happened in Charlottesville happens, the point needs to be driven home again.

Some believe the curbing of speech would somehow prevent violence. But words and actions are two different things. We have plenty of laws in place to deal with assault and vehicular homicide. What we don't need is more laws regulating speech in response to criminal activity. Certainly some of the people making the nastiest statements are also perpetrators of violence. But laws that criminalize speech extend culpability from doing to simply thinking.

There's a huge gap between defending someone's right to speak and defending what they're saying. As some people need to be constantly reminded, free speech is not speech without consequences. Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn't be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue's removal had every right to be heard, no matter how ridiculous their arguments and beliefs.

It also should be clear (but often isn't) that defending someone's First Amendment rights isn't the same thing as defending their actions. It's not even something as minimal as complicity. The ACLU stepping up to defend the white nationalist's right to assemble doesn't not make them an enabler of the violence that followed. That violence was the end result was possibly to be expected, but allowing the government to selectively revoke certain citizens' rights as a precaution isn't really the path we want to go down.

Finally, there's one more point to consider when calling for the curtailment of free speech for the "worst of the worst:" it is utterly ineffective, even if it "works." Here's Greenwald:

How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it’s forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic?

The last thing anyone needs is for the worst of worst to become cause celebres because of their odious viewpoints. No one should be in a hurry to make it more difficult to easily recognize small-minded, hateful people. Their ignorance should always be on display. Burying them just makes them more dangerous and more apt to resort to violent means to make their points.

Filed Under: charlottesville, civil liberties, civil rights, defending free speech, free speech, hate speech, violence
Companies: aclu