I attended a conference last week at AEI on free speech and one of the presenters was Rodney Smolla, an impossibly funny and interesting man. Dean of Delaware Law School, SCOTUS lawyer, defamation attorney to the stars. Anyway, he described an interesting problem in 1A doctrine.
Suppose I falsely refer to you as being trans. You're a celebrity and feel that I am defaming you in a way that's hurting you financially (e.g. by costing you customers or fans). So you sue me.
Here's the question, which I'm sure every lawyer on Twitter knows about but was new to me:
When the court evaluates your suit, it has to determine whether my speech is likely to have hurt your reputation in some people's eyes. But by what standard? A bigot's?
When the court evaluates your suit, it has to determine whether my speech is likely to have hurt your reputation in some people's eyes. But by what standard? A bigot's?
Should the court figure "Well, most of the plaintiff's fans are transphobic bigots, and therefore the accusation did harm?"
Or should it say "There's nothing wrong with being trans, so calling someone trans cannot constitute defamation."
That's the question.
Or should it say "There's nothing wrong with being trans, so calling someone trans cannot constitute defamation."
That's the question.
I *think* the correct question to ask is the first one, but I'm not certain. And anyway, using that question requires judges to reach all sorts of conclusions about prevailing levels of bigotry within a community. Tough stuff, as any social scientist can tell you!
I'm not building up to anything. I just thought this was an interesting issue and one that clearly slots into many debates we're all having about public opinion. There are real consequences -- who knew?!
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