Law & the Courts

Suing the SPLC Could Weaken Everyone’s First Amendment Rights

Maajid Nawaz at a TED Talks event in 2011. (James Duncan Davidson/TED)
It would set a precedent that could boomerang against the organization’s critics.

The Southern Poverty Law Center has apologized to Maajid Nawaz, a remarkably brave Muslim reformer, for including him in a list of “anti-Muslim extremists.” Nawaz had threatened to sue on grounds of defamation; preferring to avoid a trial, the SPLC paid him a $3 million settlement. Emboldened by that decision, 60 organizations that the SPLC has deemed racist or otherwise hateful have begun to consider launching legal proceedings against it.

The potential deluge of lawsuits against the SPLC should be opposed on free-speech grounds. Despite the frivolity and sloppiness of many of its reports, opinions expressed on the SPLC website are not illegal. As Ken White at Popehat notes:

One of the most basic principles of defamation law, mandated by the First Amendment, is that pure opinion can’t be defamatory. Only statements of provable fact — or statements that imply provable fact — can be defamatory. . . . An opinion is absolutely protected by the First Amendment unless it implies that the speaker is relying on undisclosed provable facts. So, for instance, “look at what this guy wrote, he’s a bigot” is by definition not defamatory; it’s based on an interpretation of a disclosed fact, the thing the guy wrote. “I’ve listened to this guy’s conversations and, let me tell you, he’s a bigot” might be defamatory, because it implies undisclosed facts — whatever you claim you heard.

Even at its most hackish, the SPLC tends to write pure opinion, not make empirical claims that it knows to be false. Take, for example, what is perhaps the SPLC’s most irresponsible article — its hit piece against PragerU. In it, the SPLC castigates PragerU because some of the commentators it hosts are

culled from the . . . more extreme and combative internet incarnation of conservatism: Ben Shapiro (of The Daily Wire, former Breitbart editor), Candace Owens (Kanye West influencer and vlogger behind “Red Pill Black”), Charlie Kirk (founder and head of Turning Point USA), Jordan Peterson (Canadian professor who recently called for “enforced monogamy”), James Damore (the former Google employee fired for crafting the infamous memo critical of the company’s diversity goals), Dave Rubin (host of the online Rubin Report, who has often featured guests from the racist “alt-right”), and others of their ilk.

This is a lazily written passage, produced with no discernible attempt at accuracy. Jordan Peterson, for one, has said that cultural norms should encourage monogamy, not (as the SPLC implies) that the state should coerce women into marriages they do not desire. James Damore’s infamous Google memo, seemingly unread by anyone at the SPLC, argued that differences between men’s and women’s interests partly explain why we continue to see gender disparities in STEM fields. Dave Rubin has occasionally (not “often”) hosted crackpots on his show — but that is not an endorsement of their views. (In most circumstances we should reject the suggestion of guilt by association.) As for Charlie Kirk and Candace Owens: It is true that they have said outrageous things, some of which are downright indefensible. But the SPLC is wrong to blur all distinction between agitators (Kirk, Owens) and thoughtful, if provocative, commentators (Peterson, Damore). At any rate, what is important to bear in mind is that the SPLC is here expressing its distaste for — and therefore its opinion of — people it dislikes. It has every legal right to do so. Conservative organizations should therefore resist the temptation to sue the SPLC for its opinions, however unfair or unprincipled.

Such lawsuits would also make the culture wars even nastier than they already are. For replacing argumentation with litigation raises a fundamental problem: American society has reached no consensus as to what the word “racist” even means. For some on the left, opposition to affirmative action is inherently racist. For some on the right, President Trump’s suggestion that a Mexican-American magistrate is incapable of judging him fairly is not a statement indicative of racism. Evacuated of all definitional coherence, “racist” is now a description so subjective that it has been rendered effectively meaningless. Court battles over accusations of racism threaten to convert our already visceral and tribal disagreements into disputes with legal (and financial) repercussions.

The way to oppose SPLC smears is with counterargument.

Further: The United States, as everyone knows, is growing increasingly polarized along political lines. Trump-administration officials have been heckled and harassed at restaurants; more and more people tell pollsters that they do not want their child to marry a member of the other political party. Lamentable trends such as these would only be exacerbated if conservative organizations resorted to litigation to settle arguments over “mischaracterizations” of their positions. We would advance from our already terrible status quo (“You’re racist!” says the Left; “No I’m not, you hack!” says the Right) to something even worse (“You’re racist!” writes the SPLC; “No I’m not, and I’ll see you in court!” responds a center-right organization).

Nor is there any reason to believe that a weakening of defamation-law standards would lead to unidirectional application of said law. After all, the SPLC itself could easily use libel laws to sue critics it finds disagreeable. (That might include critics who refer to its articles as frivolous and sloppy.) Nobody, however aggrieved, should hand softer libel laws to the SPLC in the name of fighting the SPLC.

The way to oppose SPLC smears is with counterargument. Or with outright dismissal — after the Nawaz case, taking the SPLC seriously has become even more difficult. Its descent can be accelerated by a simple tactic: Ignore it. There is neither need nor justification for silencing the SPLC with the power of the law.

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