Censoring South Park


Earlier this year I read an interview with Matt Stone and Trey Parker, the creative duo behind the hit animated comedy South Park, in conjunction with their new Broadway play The Book of Mormon. What struck me was one of them saying that in the episode of South Park in which they lambasted the cult of Scientology, they had wanted to say that Tom Cruise is in the closet. Their lawyer advised them that Cruise could sue them for defamation, so instead they put the cartoon version of Tom Cruise in a literal closet that he refused to come out of. The result was laugh-out-loud comedic gold, but it highlights one of my major peeves about legal causes of action, which is the law of defamation.

Defamation is a cause of action under which a plaintiff can sue a defendant for damage to his reputation. In For a New Liberty, Murray Rothbard wrote that he believed defamation law should be abolished, because a person’s reputation exists in the brains of other people and the plaintiff has no property right in other people’s minds. My concern is broader; I believe that defamation law scares people away from making statements that might offend those among us with the money to hire lawyers. This fear of being sued for defamation chills people's ability to say what they want. It scares them away from criticizing others, even when the criticism might be justified and deserved.

This danger is often poignant in the case of such artistic representations as South Park, which makes deep, meaningful social commentary by making jokes, often offensive ones, directed at people who could easily take offense and who generally have money. The strange thing is that the first amendment has a clause that guarantees freedom of speech. Why isn't the First Amendment regarded as making charges of defamation unconstitutional?

There is a larger and a smaller answer. The larger answer is that the members of the Supreme Court, even the supposedly “textualist” and “originalist” conservatives, do not take the words of the Constitution literally. They make interpretations that twist and mangle it into something that looks like what they want, something that deforms the meaning of the words on paper, written by the Founders. The smaller, more specific answer is that the Supreme Court has grappled with the conflict between free speech and defamation, and has chosen a middle ground that tries reconciles the two.

Why isn't the First Amendment regarded as making charges of defamation unconstitutional?

In the landmark case of New York Times v.Sullivan (1964), an overseer of Southern police officers, sued the Times and members of the civil rights movement under a defamation theory, accusing them of damaging the policemen’s reputation by publishing an ad indicating that the police had committed crimes against demonstrators. Instead of holding defamation unconstitutional, the Supreme Court found for the defendants, holding that when public officials assert defamation they must prove “actual malice,” meaning that the defendant knew his statement was false or acted with reckless disregard for truth. This is a much higher standard than the “negligence” requirement that applies to defamation against private individuals on matters of public concern or the mere “publication” requirement that applies to defamation by private citizens on a matter of private concern. However, after Sullivan the Supreme Court expanded the actual malice rule to cover “public figures” as well as public officials, so most celebrities, such Tom Cruise, must prove actual malice.

Actual malice was designed to prevent censorship. I am sure that the Court believed it was being quite generous by creating such a high barrier to recovery. But because defamation continued to exist, the fear of being sued and the expense of litigation remain a serious impediment to American free speech and to our ability to criticize people of political and social importance. Speaking freely about the flaws (real or alleged) of our political and cultural leadership is a basic requirement for democracy to function.

A more recent important case is Hustler Magazine & Larry Flynt v.Jerry Falwell, a 1988 United States Supreme Court case in which evangelist Jerry Falwell sued a pornographic magazine for printing a joke that accused him of having sex with his mother. The accusation was obviously a joke that no one could take seriously. It was also clearly an example of the use of charges of defamation to censor criticism and take revenge against people who offend you. The jury found against Falwell on his libel claim, but found against Hustler on the “intentional infliction of emotional distress” claim, which is a somewhat similar cause of action that is also used to censor criticism and punish offensive behavior. The jury awarded substantial monetary damages. The Supreme Court, however, found in favor of the magazine on the “IIED” (as lawyers call it) claim, citing the need to protect the American tradition of political satire cartoons, and held that the New York Times v.Sullivan “actual malice” standard for defamation against public figures should also be used in cases involved intentional infliction of emotional distress claims against public figures, in order to protect free speech and create breathing room for vigorous debate. Regarding the right to be offensive towards other people, the court said that offensive speech is protected by the First Amendment.

But again, the Court refused to see the truth sitting right under its nose, which is that the only real purpose of claims of defamation (or intentional infliction of emotion distress claims alleged against plaintiffs because of what they say or write) is to censor speech; and this violates the first amendment. The law of defamation has no place in a society that believes in intellectual freedom for all citizens. We libertarians are basically the only group of people in America who say that the emperor has no clothes and who criticize governmental mistakes that modern-liberals and conservatives ignore or condone. Defamation is an obvious abuse of the law and of the state’s coercive power to repress independent thinking, and we should all get angry about it.

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Gary Jason

I find your comment, quoting Rothbard, that reputation isn't real because it "only" exists in the mind of other people, quite puzzling... Yes, reputation is a socially constructed reality. But that hardly means that it is therefore not "real." If you stole my money, I would certainly view you as having taken my property--and the police and courts would quite agree with me--even though money has no reality outside of people's minds. (Outside of people's minds, money is just colored bits of paper). The point is that it is plenty real, real in the effects it has on my health and well-being, PRECISELY BECAUSE it is recognized by others as being money.

So too, it seems obvious, for reputation, which common-law courts have recognized for centuries, no?

If courts are allowing too many friviolous cases of defamation, why not just move to the system the rest of the world has, namely, loser-pay? That would seem to me to be the best way to cut down on frivoulous lawsuits of all kinds.

Jon Harrison

What, technically, is the difference between defamation and libel? If one publicizes an "alleged flaw" that is in fact false, doesn't that constitute libel, or the moral equivalent of libel? And shouldn't the defamed/libeled person have the opportunity to seek redress in the courts? Isn't court action preferable to defamed/libeled persons seeking revenge outside the law?

It seems to me there's a stark difference between my calling President Obama a bum, and (for example) my alleging that my married, middle-aged neighbor likes to sleep with teenage girls. The former statement may or may not be true, but clearly falls under the protection of the First Amendment. The latter statement is an "alleged flaw" that could very well ruin a man's life. If my neighbor isn't having sex with teenagers, shouldn't he have the right to bring an action against me to set the record straight?

Russell Hasan

I would like to thank Mr. Harrison for posting a comment. To deconstruct his analysis, I would argue that if I say that my neighbor is a pedophile this will "ruin his life" only if he is convicted and goes to jail. If that happens then he will have had the process of the justice system and the judgment of a jury weighing what I say, and he will have received no worse than anyone else involved in legal action. Regarding the damage to his reputation, I stand by what I said. If I tell Ms. Y that Mr. X is a pedophile, then X is free to go and say to Y that this is not true, and if he has facts then he can prove it--but at the point at which he tries to use the law to muzzle me, I feel that he has violated my freedom of speech. There is no need to involve the state in order to "set the record straight," that can be done privately, and let Ms. Y make up her own mind instead of a judge deciding what reputation is true or false. Freedom of speech should include the freedom to tell lies so long as there is no initiation of physical violence against someone else; this is, I think, in keeping with libertarian principles. Anything else is merely someone else controlling what I say, which is censorship. And the threat of violent revenge absent judicial remedy is a valid argument that courts should exist, but is not an argument in favor of curtailing rights.

Also, slander is spoken defamation and libel is written defamation, they are the two types.

Jon Harrison

Yes, slander is spoken and libel is written. That was not my question. The fact is, both constitute defamation. The notion that I should be free to defame someone, while his resourse should be limited to simply denying my slanders/libels, is naive in the extreme, even absurd. The imprimatur of the legal system is vital to preserving the reputation of the slandered/libeled person. Furthermore, it allows for the settling of such matters without violence. Mr. Hasan's position boggles the mind. The real world simply does not operate as he seems to believe it should.

I call myself a libertarian because I believe in the maximum amount of individual freedom consistent with the maintenance of a civilized, reasonably ordered society. I find myself more and more discouraged by the views expressed by some libertarians -- views that seem utterly divorced from reality. I regret to say that libertarianism looks more and more like an intellectual cul-de-sac. It seems to lack the seriousness and intellectual rigor to make a significant contribution to the world.

Mark Ian Uzick

Jon Harrison:

According to your logic, the fact that some people will take offense to your words, causing them to become violent, is justification to outlaw any speech that that someone might find offensive or allow someone who is offended to sue for damages in order to keep them from resorting to violence.

For example: A non-believer or someone of a different religious sect might be accused of slandering the believer's religion or his God and all who follow it; or a staunch labor unionist might be offended by someone's anti-union sentiment, expressed in a way that attributes base motives for a union's loyal members.

Let me take your own words and make a few substitutions to make my point:

The notion that I should be free to defame (God and His faithful believers), while (their) resource should be limited to simply denying my slanders/libels, is naive in the extreme, even absurd. The imprimatur of the legal system is vital to preserving the reputation of the slandered/libeled person. Furthermore, it allows for the settling of such matters without violence. Mr. Hasan's position boggles the mind. The real world simply does not operate as he seems to believe it should.

In a sense you may be right: I parts of the real world, as you put it, people are not ready to accept free speech; and in order to preserve order the state closely regulates it. I'm just naive enough to believe that America is sufficiently progressive that won't degenerate into anarchy over words.

Russell Hasan

You accuse me of having "views that seem utterly divorced from reality" and that I "lack the seriousness and intellectual rigor to make a significant contribution to the world"? I should sue you for libel!

Just kidding! But in all seriousness, I don't feel like you and I are on the same page, because I don't see how you refuted any of my arguments. If a person's reputation is not something that they have a right to violently defend then there is no need to worry about insulted people using violence outside the court system. If the police have the power to stop murder and crime then they can keep insulted people from taking revenge. If there is no legal right to protect a reputation, as I believe, then it is a circular argument to criticize me for removing the legal right on the accusation that there would be no recourse otherwise. Maybe a Nineteenth Century aristocratic young woman needed the law to protect her reputation for chastity, but in modern American one's "reputation" is not so magical that it needs legal guns to defend it.

I actually pride myself on being a pragmatist and scorn the naive attitude which you also seem to bemoan. But I think you missed the main point of my essay, which is that, in pragmatic, practical reality, the way the world really operates, is that defamation law is little more than a means for the rich to scare people away from criticizing them. Commentary like South Park really is at risk, and I think the world is a poorer place if we have to be afraid of getting sued just because someone else takes offense.

Jim Walsh

Harrison: You seem to have inverted the causal chain. A Social Contract that values individual autonomy above collective or utilitarian goals is what allows "a civilized, reasonably ordered society." Liberty comes first; civilized society is the result.
If you make societal structure your first thing, you inevitably lose individual liberty...and then "reasonable" order...and then civilization. We see this process unfolding in the world at large and in the U.S. in particular right now.
Then again, with apologies to the Upper West Side, I don't measure civilization by statues or symphonies or skyscrapers. Those are merely byproducts which can be (and often are) aped by tyrants. I measure civilization by how adaptive a society is--how ably it engages strangers, outliers and nonconformists.
Making individual autonomy your first thing helps here.


Tom Cruise makes his living by trying to convince people to watch his movies.

Defaming him could, or perhaps would, cause him much lost income. He should have every right to try to recapture this lost income, through appropriate legal actions.

Bob Robertson

Too bad he can't sue his director or producer for making a bad movie with him in it.

"much loss of income" is an insane charge, because that would require that Cruise has a prior claim upon the money that people MIGHT spend to see his movie in the future.

Exactly the same claim copyright holders make to say they were "robbed" of money by someone who made a copy.

They're arguing that the world owes them a living.

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