Wrong! Valley News Overstates Case for Free Speech

The Local Daily Newspaper was certainly on the right side of the virtue line when it came to the defense of the New Hampshire lawmaker who wrongly claimed during a legislative debate that fifth graders at a Nashua school had been shown pictures of naked men and taught how to engage in anal sex as part of their classroom instruction. It matters not that Rep. Nancy Elliott (R-Pleistocene) uttered pernicious falsehoods in an effort to cause bigotry to triumph over New Hampshire's legalization of same-gender marriage. As the paper pointed out in its March 7 editorial, the Speech and Debate clauses of both the U.S. and New Hampshire constitutions provide absolute immunity to legislators in these circumstances.

But, as newspapers are apt to do when pontificating about free speech, the Valley News overstated its case. According to the editorial, "Free societies hold it as an article of faith that the only proper remedy for inaccurate speech and spurious ideas is more speech, which will, in the end, expose their lack of merit."

Wrong! There's another remedy for inaccurate speech -- one that gives newspapers the shivers -- it's called a defamation lawsuit. The law allows you to recover civil damages if someone disseminates falsehoods about you and this has the effect of harming your reputation. And, by the way, it matters not whether the falsehood is disseminated negligently or intentionally. From a legal standpoint, a person's reputation is a priceless asset and, once damaged, can never be fully repaired.

Forty-six years ago, the U.S. Supreme Court had one of its finest hours when it decided New York Times v. Sullivan. This important First Amendment case limited, but did not eliminate, the ability of public officials to recover damages in defamation lawsuits. Subsequent cases extended this principle to "public figures" as well as public officials.

So, whether it is the racist southern sheriff at issue in Sullivan or whether it is Rev. Jerry Falwell (who famously lost his defamation lawsuit against Larry Flynt's Hustler Magazine), certain people will have to suffer harm to their reputations in the interest of allowing open and robust discussion of important public issues. Public figures can still win defamation lawsuits, but they have to prove by clear and convincing evidence (a tougher standard than the "preponderance of the evidence" standard in garden variety civil litigation) that the source of the falsehood acted with actual malice. In this context, "actual malice" is a term of art that means either actual knowledge the statement was false or a reckless disregard for the truth or falsity of the statement.

The Local Daily Newspaper might like you to believe it may write anything it wants about you -- true, false or somewhere in between -- without being subject to any possible legal liability should it harm you thereby. But this is patently wrong and the newspaper knows it's wrong. How ironic that the falsehood in the Valley News editorial would meet the "actual malice" standard if it had been made about a person who could bring a lawsuit!