At risk of being pedantic, the bar for defamation is considerably higher than “lying”. Very relevantly for cases like this, the plaintiffs were required to show that the false statements caused them harm, where the easiest kind of harm is financial harm (like losing your job because of the lie).

Notably, I can put up a billboard in my town that says “All of dragontamer’s code is buggy and it makes your computer smell bad”, and we’d be a long way off from you successfully suing me for defamation.

> the plaintiffs were required to show that the false statements caused them harm

IIRC, only for public figures.

The bar is far lower for private figures btw. A lot of libel/slander that would pass for public figures (ie: Politicians) are absolutely illegal and would be charged if levied against private figures instead (such as me, or the Sandy Hook victims)

> Notably, I can put up a billboard in my town that says “All of dragontamer’s code is buggy and it makes your computer smell bad”, and we’d be a long way off from you successfully suing me for defamation.

Hmm... I think the bigger issue here is whether the suit would be enough reputational damage to even get to damages. IIRC, there's minimum amounts of damage done before any suit is even considered (me lawyering up would cost more than the reputational damage in that case, so it just wouldn't be worth it).

The bar is set at a certain level of damages that I expect to get awarded (and courts also reject any case where the damages are too low). This is more due to pragmatism / the innate inefficiencies of court cases that make it less likely for all cases to be considered... rather than what is strictly legal or illegal.

IE: Even if we were to make it easier to sue for smaller amounts of reputational damage, no one would do it because of the high costs of lawyers in general (and high costs of a full court case).

Harm is required in all defamation. Public figures additionally must prove “actual malice” on the part of the defendant, which is a term of art distinct from the common usage of “malice”

> Harm is required in all defamation.

Harm is required in _most_ defamation. Some claims are considered "defamation per se", in which they are considered automatically harmful.

- Indications that a person was involved in criminal

- Indications that a person had a "loathsome," contagious or infectious

- Indications that a person was unchaste or engaged in sexual misconduct

- Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade or profession

https://www.findlaw.com/injury/torts-and-personal-injuries/w...

Per se defamation establishes that harm has occurred whether or not it is specifically proved. I was going to well-actually the same comment you did, and instead bided my time to well-actually the predictable response.

At any rate: per se defamation isn't at play in this case.

Much appreciated. I should have spelled this out more directly in my original comment, but this is what I meant about some kinds of harm being more obvious. Defamation per se exists largely to handle cases where harm occurred but it’s tough to point to a specific instance or assign it an easy dollar figure.

But it would naturally lead to lawyers letters and probably your apology and a costs settlement on the steps of the courthouse. The settlement might be zero sum, but you would expect a competent lawyer to advise you to back down gracefully all things being equal, assuming you lacked any evidence for a truth defence.

Oftentimes, the outcome isn't about winning in court. It's about the restitution of the potential harm.

No it wouldn’t. That’s what I’m saying.

It's not what you said. You said successfully suing. Most suits don't go to a win in court, they terminate before that, and terminate in lawyers letters before paperwork hits a court.

I am continuing to assert you're just wrong. I'm not a lawyer btw.

It's honestly pretty hard to work out what you're trying to assert here. The parent commenter is trying, reasonably, to establish the distinction between "lying" and "defamation". It seems like you're saying "being sued is so expensive the distinction doesn't matter". Ok, sure? That doesn't have anything to do with what they're saying, and, in the context of the grandparent comment --- about libel laws being tightened up --- isn't responsive there either.

(A distinctive feature of modern libel law is SLAPP, which permits fee recovery for defamation suits that aren't well-founded, but that works against the I argument I think but am not sure you are trying to make.)

(Pedantic nitpicking) I think you mean anti-SLAPP there. Point being that we want to avoid SLAPP.

If anybody has made it this deep in the thread and has curiosity left to spare, I’d like to recommend https://legaltalknetwork.com/podcasts/make-no-law/ , which is no longer active but whose episodes remain highly valuable in understanding first amendment law.

I think in theory he's still making these, but what you really want to do is subscribe to "Serious Trouble", Ken White's (same guy) podcast with Josh Barro.

Hah. I just mentioned that one in a separate reply to you.

I’d love a world where we continue to get Make No Law episodes, but I’d given up hope after it going dormant for a while.

He's better with Barro than when he's trying to make Legal Radiolab. :)

Curious: when are you guys listening to these podcasts? While driving? While out for a run or something? Certainly not when on the computer right - cause god knows I couldn’t do that kind of multitasking. I’d love to go through the archive of past Ken White podcasts but I don’t know how to make the time for it. Are you listening to them at 2x speed?

I have a 1 month old, so I suddenly have both a ton of time spent driving to the store to get supplies and a ton of time spent just sitting and rocking back and forth.

I don’t think this is the most efficient way to carve out time for podcasts :D

I have a 30 minute one-way commute to the office.

Anyone can sue anyone at any time. I can sue you claiming that this comment you made is defamatory towards me.

I’m saying that the suit wouldn’t end with a settlement or an apology or me doing anything; it would be thrown out for not meeting the standard for defamation. Tort is relatively boring, IMO, but the standards for various suits are well defined and publicly documented.

Lies are covered by the first amendment. There is a rather narrow exception for lies that can be proven to have harmed somebody, and you can prove that they knew that they were acting negligently (i.e. knew that it would case harm and knew that it was false). Those are very high bars to meet.

Beyond that, you can lie your head off. Jones has been lying for decades. This is the first time that it was so egregious that somebody managed to drag it across the finish line for a civil judgment.

> acting negligently

> knew that it was false

Wrong. The bar for negligence is "should have performed X, but failed to do so".

Ex: A toddler dying by falling off a deck is negligence. The homeowner "should have repaired the deck", but failed to do so. (This bar would lead to negligent homicide or manslaughter, depending on jurisdiction).

Similarly, a journalist "should have done basic research", but failed to do so, is negligence. Its a much easier bar than "malice" (ie: knew it was false, but lied anyway).

The standard relevant in most defamation cases is recklessness, not negligence.

I'm not a lawyer, do I can't say with much confidence what most "defamation cases" are.

But LII at least suggests that the law as written, is about negligence: https://www.law.cornell.edu/wex/defamation

EDIT: According to LII on libel: https://www.law.cornell.edu/wex/libel, there seems to be different awards for negligence, recklessness, and malice. Negligence is capped at actual injury, while recklessness and above can have punitive damages.

EDIT: Alex Jones's $965M penalty here is likely punitive? (I don't know for sure), which suggests that it was at least of the reckless level and proven so in court?

(1) No, again, the damages announced today are compensatory, not punitive.

(2) If we're talking about the "actual malice" standard, then the standard is recklessness, not negligence.

(3) None of that matters here, because Jones lost the trial by default (the evidence would have clearly shown Jones to have met the actual malice standard, but it's a moot point).

Thanks for your clarifications.

> (2) If we're talking about the "actual malice" standard, then the standard is recklessness, not negligence.

My understanding is that "actual malice" only applies to public figures. Not private figures?

EDIT: I should note that I'm working off of roughly high-school journalism + high school law levels of analysis here. I recognize I'm no expert in this subject, but we were forced to study this topic in my Journalism class before we were allowed to publish the school newspaper. I can believe it if my teacher was being extra-conservative with regards to the subjects we were allowed to cover.

Jones lawyers attempted to claim that the Sandy Hook parents were in fact public figures (again, this is all mooted by Jones eventual default of the defamation cases themselves; the conduct standards we're talking about apply pretty much entirely to the question of whether you're culpable in the first place, not what the damages are.)

Gotcha.

I haven't followed the full details of this case specifically. And it seems like there's multiple different cases of defamation, and my own memories could be getting mixed up between them.

Good to discuss these various details in any case. Reckless vs negligence (and other such details) are very important to understand the case.

Hm, I'm not sure if that's true or not, but I think a journalist publishing false news stories would be recklessness anyway, not negligence.

Negligence is "shoulda known better". Recklessness is "did know better". It's significantly harder to prove recklessness.

As I understand that’s not correct. Recklessness is “I did something I knew I shouldn’t have done” and negligence is “I didn’t do something I knew I should have done”.

"Lies are covered by the First Amendment" is not good legal analysis. Material misstatements of fact that cause damages are all actionable, regardless of how egregious they are. Statements of opinion, or unintentional misstatements of fact regarding public figures, or misstatements of fact that cause no provable damages are "protected", in the same sense all speech is protected.

The only thing worse than Godwin's Law on the internet is discussions of the first amendment. I've seen the exact same arguments and misunderstandings repeatedly.

It's a highly subtle right that does not mean what most people think it means. Trying to apply it in this case won't bring any value to your argument.

The reason why libel and slander laws worked was in part due to broadcasters having contributory liability that would hold them liable for broadcasting someone else's libel or printing someone else's slander. This long-standing principle - that the law does not chase pointers - is something the Internet was exempted from. CDA 230 created a new category of entity that is neither speaker nor publisher and thus exempted from defamation liability[0].

Also, the law itself is actually quite weak for very obvious 1st Amendment reasons. It has built-in exceptions designed to keep it from becoming a censorship tool. However, the context in which that law exists has made the exceptions wide enough to drive trucks through.

You see, CDA 230 alone would not have dynamited the foundations of libel or slander law. Back then, the entities shielded by these safe harbors were supposed to just be web hosting providers. But technology moves on, and now we have Facebook and Twitter, which act almost identically to broadcasters except without the liability. And since they've pushed everyone to make everything public, that makes everyone a public figure[1].

If you are a public figure, it is harder to be defamed. This should be obvious, if I say Donald Trump has a narcissism problem or just mis-state the size of his wealth I should not have to defend a multi-million dollar lawsuit from him[2]. However, if I, say, get defamed by someone and respond to them on Twitter, that makes me a public figure now - which means the bar is also raised for me as a plaintiff. This is how Elon Musk got away with calling one of the Thai cave rescue divers a pedophile, for example.

[0] DMCA 512 does the same with contributory copyright liability, though with the extra step of having to give anyone with a registered copyright total censorship powers over your platform in order to get the liability exception.

[1] Technically this is a "limited-purpose public figure", which basically means "you aren't a public figure, but you stuck your nose in the debate, so for this particular time we're going to act as if you were one".

[2] Not like it stopped him - the US court system has very few ways to stop a baseless suit before it is filed.