We have been discussing how attacking free speech has become an article of faith for many on the left. That includes embracing corporate censorship and recently even good old-fashioned state censorship. It includes banning books and preventing opposing voices to be heard on campuses. Now, MSNBC national security analyst Frank Figliuzzi has called for Rep. Lauren Boebert (R-CO) and Fox News host Tucker Carlson to face civil liability for their commentary on transgender policies or controversies after the recent tragic shooting in Colorado. It is part of a growing movement in the media in favor of imposing criminal or civil liability on opposing viewpoints — a call that is tantamount to sawing the very branch upon which journalists and analysts sit.
For the record, I am a legal analyst for Fox News.
I have spent my entire academic and professional career opposing criminal and civil efforts to punish or chill free speech. As free speech advocates, we cannot be drawn onto the slippery slope of only defending views with which we agree or treating some as beyond the protections of free speech principles because we find their views wrong or odious.
That is a test of principle that seems increasingly beyond not just many in politics but, surprisingly, in the media.
Boebert and Carlson are outspoken in their opposition to gender transitioning for children, transgender athletes competing in girl’s sporting event, and other current controversies. Defending their right to hold such positions is not an endorsement of those positions. I would take the same view if conservatives called for Figliuzzi to be criminally or civilly liable for criticizing evangelicals or Republicans before violent attacks.
On MSNBC, Figliuzzi declared:
“We said this over and over again. But strategically, what appears to be happening is they want to deny people the safe haven and safe harbor, whether we’re talking about kids in school feeling unsafe because of guns. Black churches feeling like they are going to get shot up, like at a Bible study that’s happened in South Carolina. Whether it’s synagogues, whether it’s the gay club on a weekend night, there seems to be a concerted effort to not only instill fear but deny the safe places.
…We need to see accountability and consequences… If he’s a consumer of the people we just rattled off, from Lauren Boebert to Tucker Carlson. Let’s get it out. Let’s get it out at trial. Let’s expose it for what it is, name it, and shame it. He. is a consumer of these people, and those people should face civil consequences from the victims.”
It is not clear what those “civil consequences” would be but it is obviously meant to punish those who are critical of transgender policies or positions. We have already seen cancel campaigns against figures like JK Rowling and others for such criticisms.
The civil liability could come in the form of agency actions by the FCC against Fox, but that would not include a member of Congress. It would also not pass constitutional muster, in my view.
The most obvious form of civil liability would be some type of tort action. However, group defamation is rarely a viable basis for a defamation claim. In the United States, it is extremely difficult to maintain a “group libel” case even when there is jurisdiction.
One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end store sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the store and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.
Moreover, arguing that these speakers induced violence under another form of tort liability would be quickly rejected under the First Amendment. Previously, MSNBC legal analyst and Michigan Law Professor Barbara McQuade told MSNBC viewers that Trump could be charged with manslaughter for his role in the January 6 Capitol riot. This would fail for the same reason.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
Indeed, even direct action causing emotional distress has been rejected on constitutional grounds.
One such case is Snyder v. Phelps, 562 U.S. 443 (2011). I previously wrote that such lawsuits are a direct threat to free speech, though I had serious problems with the awarding of costs to the church in a prior column. I was, therefore, gladdened by the Supreme Court ruling 8-1 in favor of free speech in the case, even if it meant a victory for odious Westboro Church. Roberts held that the distasteful message cannot influence the analysis:
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”
Roberts further noted that “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
The Court in cases like New York Times v. Sullivan have long limited tort law where it would undermine the First Amendment:” Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment.”
MSNBC and Figliuzzi are perfectly within their rights to condemn Boebert, Carlson, or others for their viewpoints. That is the essence of free speech. They can respond to what they view as bad speech with better speech. However, the way to convince others that these views are wrong is not to seek the silencing of the speakers, but to present the reasons why those views should be rejected by others.