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When libel laws are needed Smear campaigns are not protected by free speech

"I'm Jo" (John Phillips/Getty Images)


April 11, 2022   5 mins

“Andrew Doyle is an ultra-conservative anti-feminist homosexual who uses a drag persona on Twitter to attack trans and queer people
 He wishes with all his heart that he was Julia Hartley-Brewer. Pathologically so.”

Only one assertion in this tweet is true — and with apologies to Julia Hartley-Brewer, it isn’t the one about yearning to metamorphosise into her. I have never attacked trans or queer people; I have been a consistent advocate of women’s rights; I mostly hold Left-wing political views; and I’ve only ever dragged up once (the experiment was a failure and I subsequently destroyed all photographic evidence).

And yet despite its bizarre claims, this tweet does serve some purpose: it offers an insight into the mindset of those who claim to be “on the right side of history”. Specifically, we can see three traits on display: the tone of Pharisaic certainty even when declaring falsehoods, the conviction that it is possible to intuit the private thoughts of others, and a complete disregard for the concept of defamation.

I would like to focus on the last of these traits; the willingness to defame with no sense that there might be consequences. Today’s culture wars are largely being waged through the manipulation and misapplication of language. Many activists are explicit about their refusal to debate their ideas — for the simple reason they would collapse under scrutiny — and one of the ways this can be achieved is to destabilise shared definitions of words.

In their world, libel simply cannot exist, because the meaning of language has become a purely subjective matter.

For example, the term “racism” is generally understood to mean hatred or prejudice based on race, but for intersectional activists “racism” is an equation: prejudice plus power. Similarly, the term “fascism” traditionally connotes an authoritarian movement based on an extreme form of nationalism combined with claims of racial purity and a militaristic repression of dissent. Yet last week Labour MP Claudia Webbe claimed that the government’s decision to privatise Channel 4 was not a show of  “freedom or independence” but “the seedbed of fascism”.

Webbe is not libelling anyone here, of course — she is merely revealing her own historical illiteracy. However, her tweet serves as a reminder that the juvenile discourse of social media has now successfully invaded the parliamentary realm. It is one thing for Twitter trolls to promiscuously hurl about terms such as “Nazi”, “fascist”, “homophobe”, “transphobe” and “racist”, but when politicians join the crackbrained chorus we ought to take note.

We have reached the point at which these labels are no longer taken seriously. Whenever most of us come across accusations of “fascism” or “racism” on social media, the default assumption must now be that they are unfounded. This has provided succour for the far-Right by promoting the illusion that their views are widespread. It has also made it difficult to identify real fascists and racists because the words have been downgraded to indiscriminate terms of abuse.

Casual libel is now so commonplace that the consequences are no longer feared, even by media outlets. A fortnight ago, the official Twitter account of Newstalk, an Irish radio station with over 250,000 followers, made the plainly false assertion that J.K. Rowling has “a long history of opposing rights for trans people”. The tweet was eventually deleted, but it is revealing that it was posted in the first place.

It has apparently been forgotten that false allegations of this kind often lead to successful lawsuits. Frankie Boyle famously won over £50,000 in damages when the Daily Mirror branded him a “racist” in 2012. And only last month, the Telegraph paid out more than £40,000 to Laura Murray, a former aide to Jeremy Corbyn, for describing her as an “anti-Jewish racist”. In legal terms, such statements simply do not fall within the scope of “personal opinion”.

A high profile case last week might end this collective amnesia over the potential impact of committing libel or slander. A court in Ohio has rejected an appeal by Oberlin College after members of staff participated in a smear campaign against Gibson’s Bakery, falsely and repeatedly stating that the local business was run by racists. As a result, the college will have to pay $25 million in punitive damages and a further $6 million in legal fees to the bakery, although its two owners died before the case was resolved.

The story is extraordinary. In November 2016, a black student was apprehended in the act of shoplifting two bottles of wine from the store. After the incident, students at Oberlin accused the bakery of being a “racist establishment” with a “long account of racial profiling”, even though such claims were groundless and the thief had admitted to his crime. In what struck many as a disingenuous interview with CBS News, the current college president Carmen Twillie Ambar argued that Oberlin should not be “held liable for the speech of students”, omitting the fact that college staff had also been involved in the smear campaign.

Witnesses confirmed that Meredith Raimondo, the vice-president and dean of students, had distributed flyers which repeated the libel, and actively participated in the protests. She even ordered the college cafeteria to stop buying products from the bakery in an effort to coerce them into dropping the shoplifting charges. Students were excused from classes to attend the protests, refreshments were provided by college officials, and photocopies of the flyers were made by Oberlin’s administration office.

All of which is perhaps to be expected from a college which has garnered a reputation as a bastion of “wokeness”. When the academic and philosopher Christina Hoff Sommers gave a talk at the college, students were so upset by her opinions that they retreated en masse to a “safe room” with a therapy dog.

Whenever the targets of libel fight back through the courts, they are invariably accused of attempting to curtail free speech. This is a common misapprehension, although an understandable one. Many free speech advocates oppose the very concept of libel on the grounds that it has often been exploited by powerful individuals hoping to silence their critics. But when a person is publicly defamed, and their reputation or income is damaged as a result, he or she has every right to seek recompense.

Our freedom of speech is in no way violated by laws against libel, fraud, perjury, blackmail or espionage. In such instances, speech is not the crime itself but the mechanism by which it has been committed. The charge of “racism” is one of the most potentially damaging in our current climate, and so it has become the go-to slur for those looking for a quick and easy method of discrediting their political opponents and ruining their lives. On principle, such bullies ought to be opposed, and civil action against libellous statements is one way in which this can be achieved.

The widespread ignorance of defamation laws would not be such a problem were it confined to the Twittersphere. Unfortunately, we are seeing this foolish disregard exhibited more and more by figures of authority in our major cultural and political institutions. The warped logic and behavioural customs of social media are somehow seeping out into the real world, undermining public discourse and the possibility of good faith discussion.

It remains to be seen whether the cautionary tale of Gibson’s Bakery will give activists pause before belching out their unsubstantiated allegations. They have become so accustomed to getting their way that they now feel entitled to smear others at will. But while litigation is best considered a last resort, it is sometimes a necessary means by which Davids can stand up to their Goliaths.


Andrew Doyle is a comedian and creator of the Twitter persona Titania McGrath

andrewdoyle_com

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J Bryant
J Bryant
2 years ago

Great article. I wondered when people smeared by the woke would turn to libel laws for justice.
I’d love to read a more in-depth article by a lawyer describing potential application of libel/defamation laws in the US and the UK to unfounded accusations of racism and the like, and also the application of any other relevant laws such as those relating to intentional infliction of economic harm.
I’d also like to know why individuals making these false accusations were not sued in addition to Oberlin–I suppose one answer is they had no money to pay damages.
Easily the most disturbing paragraph in this article is:
Witnesses confirmed that Meredith Raimondo, the vice-president and dean of students, had distributed flyers which repeated the libel, and actively participated in the protests. She even ordered the college cafeteria to stop buying products from the bakery in an effort to coerce them into dropping the shoplifting charges. Students were excused from classes to attend the protests, refreshments were provided by college officials, and photocopies of the flyers were made by Oberlin’s administration office.
How can a senior college administrator possibly believe such actions were appropriate?
Oh, and thanks to the author for a great laugh:
When the academic and philosopher Christina Hoff Sommers gave a talk at the college, students were so upset by her opinions that they retreated en masse to a “safe room” with a therapy dog.

Sam Wilson
Sam Wilson
2 years ago
Reply to  J Bryant

“Retreated en masse to a safe room”. I am surprised and annoyed that they all fit – what a waste of space. Also, poor dog.

Lesley van Reenen
Lesley van Reenen
2 years ago
Reply to  Sam Wilson

Probably an auditorium. Yes poor dog to be shut up with scads of angry, unkind and indeed stupid people.

Last edited 2 years ago by Lesley van Reenen
Anna Bramwell
Anna Bramwell
2 years ago

Perhaps the dog needed therapy afterwards.

Lindsay S
Lindsay S
2 years ago
Reply to  Sam Wilson

It’s disconcerting how many students haven’t grown (emotionally) beyond primary age. I find it deeply troubling that universities are not only accepting but enabling this depth of immaturity!

AC Harper
AC Harper
2 years ago
Reply to  Lindsay S

Universities are now much more clearly commercial enterprises, chasing greater numbers of attendees for their money. You cast the net wider and you pull in a bigger bycatch.
Plus as (many) universities are Left inclined, they share the myth that people are already impeccable as they are.

Linda Hutchinson
Linda Hutchinson
2 years ago
Reply to  Lindsay S

They really shouldn’t be allowed out without their mummies with them.

Brian Burnell
Brian Burnell
2 years ago

Their mummies made them as they are. The mummies should be jailed for child neglect.

Terence Fitch
Terence Fitch
2 years ago
Reply to  Lindsay S

As an 18-19 yr old student in the late 1970s I was idealistic and wet behind the ears but I never thought the world owed me anything or that I’d be offended by something I didn’t like or disagreed with. I just disagreed with it! And how could I disagree with it if it had been cancelled?

MJ Reid
MJ Reid
2 years ago
Reply to  Lindsay S

Two reasons for this. So many parents were/are bri going their children up without sound boundaries. An example from my own family, my youngest brother and his wife decided that their children would set their own boundaries and make their own norms. Result. Two young adults who went through school bullying other children and who can’t actually think for themselves without “checking” with Mum and Dad. The other is that there are few technical colleges and all young adults have to go to university,which is not the place for the majority who should be learning trades. At university they think tbey are entitled and nobody disillusions them.

Ian Stewart
Ian Stewart
2 years ago
Reply to  Sam Wilson

The dog probably required therapy afterwards.

Henry Ganteaume
Henry Ganteaume
2 years ago
Reply to  J Bryant

Great article, and deeply depressing.

Jason Smith
Jason Smith
2 years ago

Claudia Webbe is no longer a Labour MP. She is an independent having had the whip suspended after being found guilty of, ironically, harassment and given a suspended sentence of 10 weeks in prison.

Trevor Q
Trevor Q
2 years ago

‘When I use a word’ Humpty Dumpty said, in rather a scornful tone, it means just what I choose it to mean – neither more nor less.’ ‘The question is’ said Alice ‘whether you can make words mean so many different things.’ ‘The question is’ said Humpty Dumpty ‘which is to be master – that’s all.’

Tom Lewis
Tom Lewis
2 years ago

“ the term “fascism” traditionally connotes an authoritarian movement based on an extreme form of nationalism combined with claims of racial purity and a militaristic repression of dissent”

It seems that this term needs to be updated to – An authoritarian movement based on an extreme form of ideology combined with claims of being on the right side of history and a militant repression of debate or dissent.
Or, as we say in Scotland, the SNP !

Mel Shaw
Mel Shaw
2 years ago
Reply to  Tom Lewis

Fascists also need an external group to scapegoat for any perceived disadvantages they believe they suffer. For the Nazis it was the Jews, for the SNP, the English.

Warren T
Warren T
2 years ago
Reply to  Mel Shaw

And for the left in the U.S., it was Trump.

MJ Reid
MJ Reid
2 years ago
Reply to  Mel Shaw

No, it is anyone who disagrees with them including Scottish people.

Drahcir Nevarc
Drahcir Nevarc
2 years ago
Reply to  Mel Shaw

For woke fascists, it’s white people.

Elizabeth dSJ
Elizabeth dSJ
2 years ago
Reply to  Tom Lewis

So your solution to leftwing smear campaigns is to expand the oldest smear campaign of liberal-left politics, branding people a “fascist?”
Stalin would be proud of you.

Charles Hedges
Charles Hedges
2 years ago
Reply to  Tom Lewis

We need to return to the definition by Gentile which I think is ” Everything in the state , everything for the state and nothing against the state”. Fascism comes out 19th century Syndicalism and is basically ant- Catholic and aristocratic.
Giovanni Gentile – Wikipedia

Brian Villanueva
Brian Villanueva
2 years ago

“It has also made it difficult to identify real fascists and racists because the words have been downgraded to indiscriminate terms of abuse.”

The postmodernists’ constant twisting of language make it impossible to talk about anything.
40 years ago we started debating the meaning of “baby”.
10 years ago we were debating the meaning of “marriage”.
Today we’re debating the meaning of “woman”
How long before we start debating the meaning of “human”?

The same impetus that makes someone willing to libel and bankrupt a politically different person will, eventually, lead to imprisonment or worse. Once a portion of your society has been officially determined to be “not human”, it’s only a matter of time before you start hurting them.

Warren T
Warren T
2 years ago

It’s a sign of the End Times.

MJ Reid
MJ Reid
2 years ago

Animals have human rights too, as I have been told by young people who I thought had more sense but have been brainwashed by organisation s who are happy to take money from the public purse but spout rubbish.

Brian Burnell
Brian Burnell
2 years ago
Reply to  MJ Reid

Cabbages have rights too. And many cabbages are admitted to universities.

Malcolm Knott
Malcolm Knott
2 years ago

Defamation is bedevilled by the prohibitive level of legal costs. For most people, launching a libel action, or defending one, puts their entire fortune at risk. Costs are high because damages are high; big money is involved and that means expensive legal teams fighting for big stakes. In the result, many libels go unpunished and many true stories are stifled.
One way to deal with this might be to remove the right to damages while enhancing the right to demand correction. So, for example, if the BBC libelled Cliff Richard for 12 minutes in an evening news bulletin, the court could order that the first 12 minutes of three consecutive news bulletins be devoted to a blank screen carrying an apology and correction.

Jeremy Bray
Jeremy Bray
2 years ago
Reply to  Malcolm Knott

The problem with this your suggestion is that a libel can have severe financial consequences that may not be compensated for by a retraction. Obtaining professional insurance is one way of reducing the risk involved in costs. The downside always remains that the law of libel tends to shield the reputations of wealthy but dodgy individuals like Robert Maxwell and Jimmy Savile where proving their unsavoury activity is costly and difficult.

Malcolm Knott
Malcolm Knott
2 years ago
Reply to  Jeremy Bray

I agree, and I would allow compensation for direct and indirect financial loss, supported by evidence. However, I would not award damages for non-financial loss, such as injured feelings, indignation or anger, however well-deserved. I say this simply because I think damages-driven legal costs have spiralled out of control.
Of course, there may be cases where financial loss does not arise. I don’t suppose, for example, that J. K. Rowling will suffer any financial loss from the stupid and untrue things that have been said about her and I would not (for the reasons I have explained) award her damages for injured feelings. But I would require those who have slandered her to retract in the most public, unequivocal and humiliating way – and pay her legal costs.
I also agree that bullies can and do use the law of defamation to shield their dodgy reputations. Perhaps threatening a lawsuit to suppress the truth should be punishable as contempt of court, or indeed as a criminal offence?
These are knotty problems, with no easy solutions.

Lou Campbell
Lou Campbell
2 years ago

How sad that both the owners died before they were vindicated.

Michael James
Michael James
2 years ago

The opposite can also be a problem, when people try to silence accurate critical comment by labelling it a ‘smear’, as when Rishi Sunak complained that his critics had ‘smeared’ his wife in order to get at him.

Last edited 2 years ago by Michael James
Andrew Wise
Andrew Wise
2 years ago
Reply to  Michael James

But a smear can also be true – Rishi isn’t denying his wife’s former tax status, just complaining about the way the information came out.
This article is about slander, liable and untruths, not uncomfortable facts

Michael James
Michael James
2 years ago
Reply to  Andrew Wise

I think Andrew Doyle in this article is clearly using ‘smear’ to mean deliberate and malicious lies, which is the correct usage. If all unwelcome comment can be deflected by being called a ‘smear’ it becomes even harder than it already is for public debate to get anywhere.

Last edited 2 years ago by Michael James
Samuel Gee
Samuel Gee
2 years ago
Reply to  Michael James

I agree with the others who have replied and would add that intent is also pertinent. If the person making public the non-dom status of Akshata Murty was motivated by the knowledge that such revelations would damage Rishi Sunak in the eyes of the public, then, however true the information is, that’s a smear.

Jason Highley
Jason Highley
2 years ago

Very nice read. I’m going to look more into this now.

Terence Fitch
Terence Fitch
2 years ago

I imagine the legal term ‘reasonable’ that you’d need in a law about free speech depends on a reasonable consensus across a population. Siloism and identitarianism leaves no room for this so the commentariat will have to continue like Kilkenny cats in a bag of their own making. Not sure folk working their backsides off in physically demanding jobs from bin guys to factory workers to sewer engineers give a damn.

Last edited 2 years ago by Terence Fitch