So I hope you'll forgive me if I take a one-post detour to highlight two recent defamation stories.

ITEM: Even laypersons know that truth is an absolute defense to defamation — or is it?

Though proof of a statement's truth as an absolute defense against libel lawsuits has long been a touchstone of libel law, the three-judge panel did not heed that standard in its Feb. 13 decision in Noonan v. Staples [No. 07-2159, 1st Cir., February 13, 2009], at least where private matters are concerned.

Relying on the 1902 Massachusetts statute, the panel ruled that Alan S. Noonan, a former Staples employee, could proceed with a libel suit against Staples after an executive sent an e-mail to 1,500 employees that named Noonan. Although the e-mail truthfully stated the reasons for Noonan's firing, the federal panel found that it may have been written with actual malice.
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"It is the most dangerous libel decision in decades," wrote Massachusetts lawyer Robert J. Ambrogi on his blog, Media Law. "The decision puts a crack in the bedrock that threatens to undermine free speech."

MY TAKE: In law school you learn what your professor finds interesting, and my professor was fascinated by the concept of scienter. "Scienter" in this context basically means that "not caring whether a statement you make is true or false" is not functionally different from "knowingly making a false statement."

Here Staples sent a nasty email that, at the time it was sent, was not necessarily true. It turned out to be true after the fact. Should that subsequent "truth" still be an absolute defense to the libel claim, even though the "truth" didn't exist at the time that the alleged libel occurred? The First Circuit, applying Massachusetts law, says "perhaps not" and allows the case to proceed to trial.

I learned about scienter in the context of another tort — fraud. I had never considered it in the context of defamation. Apparently neither had anybody else.

The problem I have with allowing this case to proceed is with linking liability to damages. Even if a malicious statement can metastasize into a defamation claim based on scienter rather than falsity, how can a true statement be damaging? And if there can't possibly be damages, then what is the point of going to trial one way or the other?

Oh, and that whole "First Amendment" thing too…

—

ITEM: What was I just saying about Murray Rothbard?

Does Smith, for example, have the right (again, we are concerned about his right, not the morality or esthetics of his exercising that right) to print and disseminate the statement that "Jones is a liar" or that "Jones is a convicted thief" or that "Jones is a homosexual"?

Ahem:

In October 2007, Howard K. Stern, co-star of The Anna Nicole Show, filed a lawsuit claiming that he was defamed when the author of a tell-all book said he was gay. A Manhattan judge will soon decide if the suit should go to trial. Stern (not the host of the Howard Stern Show) has asked for $60 million in damages.

This may seem like a throwback, but gay libel suits abound. In December, Joseph Farah, founder of the conservative news site WorldNetDaily, threatened a libel suit against Wikipedia, which had listed him as "an Evangelical Christian American journalist and noted homosexual." And in 2003, a Los Angeles judge awarded Tom Cruise $10 million in a gay libel suit against a porn star who claimed he and Cruise had been lovers.
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And yet these suits continue, in part because gay rights groups have ignored them. Lambda Legal, one of the largest gay legal rights groups, has taken no position in any of the cases across the country involving defamation and accusations of homosexuality. That's partly because the group is busy with broader issues, like marriage rights. But Lambda should take the time to enter gay libel cases on the side of the defendants.

MY TAKE: One of the problems with "gay libel" (i.e., why such lawsuits keep appearing) is because it is very easy to couch the allegation in multiple ways that would still survive even after the "it's okay to be gay" defense.

For example: If I accuse Tom Cruise of being gay and having had homosexual affairs, then I am not only accusing him of being gay but also of being an adulterer. That alone is an unambiguously defamatory statement; the gender of the "other woman" is essentially irrelevant. If I accuse Phyllis Schlafly of being a closet lesbian, then I am also accusing her of being a liar and a fraud — again defamatory statements in their own right.

It's excruciatingly difficult to craft a fact pattern where the only allegation that could be deemed potentially defamatory is sexual orientation (i.e., with no "and therefore…"). That's why, in my view, this important legal question isn't withering on the vine at the pace one might expect.

(As for the clearly uninformed critique of Lambda Legal, one should keep in mind that they do a great deal of their work, perhaps most of it, "behind the scenes." An important example: Lambda matches gays in need of mundane, "non-headline" legal assistance with a vast network of volunteer "Contributing Attorneys" in private practice — who represent gays for free or reduced fees. I have no doubt that Lambda would provide this vital referral service to any "gay libel" defendant, even straight ones, who asked for it. Not everything is a Proposition 8.)

Previously:
–They're Straight (Not That There's Anything Wrong With That…)
–Why Torts Will Always be My First Love

On Saturday June 8, 1996, Tom and Judy Schubert left town, leaving their three teenage children at home. While the Schuberts were away, their seventeen-year-old daughter, Laura, spent much of her time at the family's church, Pleasant Glade Assembly of God, participating in church-related activities.
…
During the evening service, Laura collapsed. After her collapse, several church members took Laura to a classroom where they "laid hands" on her and prayed. According to Laura, church members forcibly held her arms crossed over her chest, despite her demands to be freed. According to those present, Laura clenched her fists, gritted her teeth, foamed at the mouth, made guttural noises, cried, yelled, kicked, sweated, and hallucinated. The parties sharply dispute whether these actions were the cause or the result of her physical restraint.

Church members, moreover, disagreed about whether Laura's actions were a ploy for attention or the result of spiritual activity. Laura stated during the episode that Satan or demons were trying to get her. After the episode, Laura also allegedly began telling other church members about a "vision." Yet, her collapse and subsequent reaction to being restrained may also have been the result of fatigue and hypoglycemia. Laura had not eaten anything substantive that day and had missed sleep because of the spiritual activities that weekend. Whatever the cause, Laura was eventually released after she calmed down and complied with requests to say the name "Jesus."

Cutting to the chase, the parents sued for the vicious assault by these demented lunatics upon their underage child. So far, so good.

But the family only won damages related to the physical assault of the minor (indeed, the church admitted liability on that count from the outset). This litigation concerned the psychological and emotional harm resulting from this redneck Pentecostal "exorcism."

If the court had found that there had simply no been no such psychological or emotional harm, then so be it — and this would have been a very different blogpost.

Instead, the court went down a much worse path:

Pleasant Glade and the other defendants sought a protective order and moved to dismiss the Schuberts' lawsuit as an unconstitutional burden on their religious practices, describing the litigation as "a dispute regarding how services should be conducted within a church, including the practice of 'laying on of hands.'"
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We have previously said that adjudication of this type of claim "would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution."
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In this case, although Laura's secular injury claims might theoretically be tried without mentioning religion, the imposition of tort liability for engaging in religious activity to which the church members adhere would have an unconstitutional "chilling effect" by compelling the church to abandon core principles of its religious beliefs.

In other words, it is supposedly wrong for a court to tell a church not to illegally traumatize kids, because then those churches might actually refrain from illegally traumatizing kids.

Splendid.

In questions of sexual torture versus consent, "stop" means stop. But in questions of religious torture versus consent, "stop" apparently means you're still possessed by demons and need yet more "laying on of hands." And your torturers are somehow protected by the First Amendment the whole time. A Santeria witch doctor can't hide behind the First Amendment when he seeks to slaughter a helpless animal, but a Christian pastor can invoke "church and state" when he's psychologically scarring a minor for life.

That simply cannot be right.

For a reality-based analysis, we must rely on the dissenting opinions. We have three to choose from; I will quote from two:

[I]f Schubert were merely complaining of being expelled from the church, she would have no claim in the civil courts. But again, this case, as it was tried, is not about beliefs or "intangible harms" — it is about violent action — specifically, twice pinning a screaming, crying teenage girl to the floor for extended periods of time. … The tort of false imprisonment is a religiously neutral law of general applicability, and the First Amendment provides no protection against it.

Exactly right, just like animal cruelty is (usually) a religiously neutral law of general applicability that is simply not negated by the First Amendment whenever some barbarian wants to disembowel a goat.

Because the fundamental principles of Texas common law do not conflict with the Free Exercise Clause, courts can and should decide cases like this according to neutral principles of tort law. If a plaintiff's case can be made without relying on religious doctrine, the defendant must be required to respond in kind. … If Schubert had consented to the church's actions, the consent — under our familiar, neutral principles of tort law — would have completely defeated her claims. The jury, however, found that Schubert had not consented, and Pleasant Glade does not challenge that conclusion.

Could you imagine if you, as an agnostic music lover, attended a choir recital in a church and then were told, without warning or your prior consent, that you could not leave until you underwent a ritual baptism or exorcism? Now imagine it wasn't you but your minor child. Would you meekly accept a court ruling that there was, somehow, a "First Amendment defense" to your lawsuit?

The family is reportedly considering an appeal to the U.S. Supreme Court. Good for them.

The case is Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Supr. Ct. Tex., June 27, 2008).

Nevertheless, some items crossed my aggregator recently that together illustrate the difficulty in trying to craft a position that is simultaneously "libertarian" and absolutist.

First: Libertarians would all no doubt agree that children should not be required to recite, or even stand during, the Pledge of Allegiance while in public school. That is an unambiguous right under well-settled law: West Virginia v. Barnette, 319 U.S. 624 (1943).

But exactly whose "right" are we talking about?

Here … the refusal of students to participate in the Pledge — unless their parents consent — hinders their parents' fundamental right to control their children's upbringing. The rights of students and the rights of parents — two different sets of persons whose opinions can often clash — are the subject of a legislative balance in the statute before us. The State, in restricting the student's freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect. … Should a parent request that his child not recite the Pledge — even where the child wishes to recite — the statute provides that the school must excuse the student.

Read that last sentence again: the "right to refuse to recite the Pledge" is not the student's at all, but only the parents'. If the parents say "recite," then the student must comply, and the school must coerce — the "right" is not hers at all. And even the reverse is true: If the parent says "do not recite," then the school must take affirmative steps to bar the student from reciting; she has no say in the matter whatsoever.

On the plus side, this case was a facial challenge to compulsory standing during the Pledge (even if not to recite it). The court left open, indeed emphasized, the possibility of future "as applied" challenges, and specifically mentioned that its reasoning was especially robust in the context of "elementary and middle school students" (i.e., but possibly not for older students who might be entitled to make their own decisions). Still, the question of where the right of the parent to control ends and the right of the child begins should not be so cavalierly treated as either obvious or absolute. Indeed, as a certain other group of pro-child libertarians would emphasize, one can easily and persuasively argue that the younger the child, the more urgent is the elevation of his rights over the "rights" of his parents.

Like I said: Thorny. Which is fine, as long as we acknowledge it as such.

The case is Frazier v. Winn, No. 06-14462 (11th Cir., July 23, 2008) (PDF – 14 pages).

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So the "right to raise your child as you see fit" seems to trump your child's rights, at least in some circumstances. But what about the "right to make your child as you see fit"?

Using preimplantation genetic diagnosis (PGD), parents can now screen embryos for genetic traits such as deafness and Achondroplasia (dwarfism). Studies show that some parents intentionally choose embryos with disabilities because that genetic trait runs in the family. This recent and increasing trend raises the important legal question of whether children can sue their parents in tort for selecting disabling genetic traits.
…
[C]hildren should be able to successfully sue their parents in some instances. Children have a moral right to an open future and tort law should protect this moral right where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths.

Variations on this theme pepper TV dramas: I know of at least two programs concerning the issue of cochlear implants (i.e., do deaf parents have the "right to a deaf child"?) and one concerning whether to perform neonatal surgery for a child with ectrodactyly.

The idea that parents should not be allowed to arbitrarily "modify" their babies, at least in certain ways, is not new. Neither is the idea that, in some rare instances, a child should never have been born in the first place. But both those positions are anomalies — for now, at least. Generally speaking, "I would have been better off never having been born" is a losing argument in court.

Still, the notion that a child has a "right to an open future" that supersedes his parents' wishes is an enticing libertarian proposition, to me at least. I think it's a very good framework for taking on the great libertarian conundrum of "children's rights versus parents' rights." The parents' "right to raise their child as they see fit" must end where the child's "right to an open future" begins.

—

I never weighed in on the Yearning for Zion incident in Texas. Suffice it to say that mine was the minority view among libertarians. While the actions of law enforcement may have been sloppy and based on improper (and to some extent flat-out false) "evidence," I continue to believe that the underlying analytical framework the authorities invoked is valid: It is itself child abuse to raise a child in an environment where the celebration (if not the practice) of child abuse is the very purpose of establishing that enviornment in the first place. The one and only true raison d'être of the Fundamentalist LDS cult, one that they themselves openly and notoriously proclaim, is to celebrate the rape of underage girls. That fact and that fact alone is sufficient grounds in the civil context (indeed I would argue that it constitutes probable cause in the criminal context) to search and seize such compounds, without any need for additional evidence of individualized suspicion.

Even if the FLDS adults insist that they only "celebrate" child abuse and swear that they don't actually engage in it. Even if they in fact don't ever engage in it. The analysis doesn't change: The environment itself, the celebration of child abuse itself, is so toxic, so dangerous, that just to expose a child to it, even if no proximate abuse takes place, is itself per se abuse, and a per se violation of the child's rights.

This is, I submit, an entirely libertarian position (if not, however, the only entirely libertarian position): If it is a proper function of government to protect individual rights, then that includes protecting the rights of these children. Reasonable libertarians can disagree over what those rights are, and how best for the government to protect them, but not whether those rights exist. They do.

If you need a summary of my reasoning, then you can find proxies for it from law professor Marci Hamilton here and here.

You might be confusing "motive" with "intent." The DA is entirely correct: "motive" is not an element of a crime and need not be demonstrated either to a grand jury for indictment or to a petit jury for conviction.

The distinction essentially is: "intent" can mean "intent to perform the act resulting in the crime" and not just "intent to commit the crime" or "intent to harm." The specific definition of "intent" depends of course on the specific crime in question.

The technical definition of "intent" also plays a vital role in tort law (excluding of course negligence and strict liability torts). All that is required is "intent to perform the act that harmed" and not "intent to harm." A subtle but important distinction.

Another friendly comment I posted yesterday, this time at another Elite Eleven blog, Catallarchy, regarding whether a drug dealer who sold an addict enough narcotics to die from an overdose could be charged with murder:

[A Minnesota statute that reads:]

Whoever, without intent to cause death, proximately causes the death of a human being by, directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance classified in schedule I or II, is guilty of murder in the third degree[.]

is just a variation of felony-murder. A prosecutor would, incidentally, have a hard time getting past the "proximate causation" element.

Armed with these two snippets, how far should liability, either criminal or tortious, extend to this upstanding citizen?

A 27-year-old Avondale [Arizona] man has been arrested on suspicion of causing a massive power outage last summer in Goodyear's Estrella community.

The outage knocked out power to nearly 4,000 homes for 19 hours June 18, 2007, when Goodyear's high reached 115 degrees.
…
According to police, officers arrested the suspect on a tip from the public. He reportedly told investigators he cut down the pole because he enjoyed the sparks it made.

If someone died from the heat after the suspect cut the power, would that be murder? A wrongful death lawsuit? Could a restaurant that saw its food supplies spoil sue for loss of business? If the blackout caused looting and vandalism, would the suspect be liable for it? Discuss.

I love this stuff…

(Via Fark, where commenters insist that the, um, motive of the accused was not to see sparks but to steal the copper wire.)

A man and his pregnant fiancée are demanding $10 million from the Bronx Zoo after being stuck on a cable car for five hours above fang-baring, flesh-eating baboons.

"They didn't know if they were going to live or die," said lawyer Adam Shapiro, who filed the lawsuit yesterday.

Damien Foster and Nandi Taylor say they suffered "psychological trauma" and that Wednesday's ordeal put the pregnancy at risk.

Three dozen people were stranded on the Skyfari cable-car ride until about 11 p.m. amid lightning.

You know as well as I do that the lawsuit most likely is, and the damage request definitely is, utterly ludicrous. Not every hiccup in life is a cause of action, not every mechanical failure is negligence. Not every "trauma" is particularly traumatic.

What you might not know is this: Baboons are (generally) vegetarians.

Are we still stuck up in the "$10 million air"?

P.S. For those who don't get the intro, see here.

A Jackson State University official blames pranksters for the mistaken demolition of a house — and everything in it. Owner Annie Wilson of Dallas said trying to get fair compensation has been a nightmare.

Vice president Troy Stovall said Jackson State bought the lot next to hers for potential expansion. He says somebody moved signs with the address and a notice that it belonged to the school onto Wilson's lot — so the contractor worked at the wrong site.

The 713-square-foot house had been appraised for just over $10,000. The school offered Wilson $8,000 in May. She says someone from the state finance department offered $20,000 on Thursday.

Wilson says she should get at least $30,000, because of all the belongings destroyed.

She says those include antique furniture and handmade quilts.

I could fill a dozen bluebooks on this. Trespass, negligence, conversion, negligent supervision (of both the contractors and the pranksters), vicarious liability, contribution and indemnification, negligent infliction of emotional distress (the contractors and university), intentional infliction of emotional distress (the pranksters). The list is endless. And that's before the subsequent (but still bluebookable) question of how to measure the damages (cf., "burned and hairy hand").

Fun stuff (well, for us, if not for unfortunate Mrs. Wilson.)

—

In actuality, I think another, more primal reason why torts will always be my first true love is because I'm a libertarian. Put the Constitution aside for just a moment. Torts is, quite frankly, the real law of libertarianism.

All tort law begins with the presumption that your life belongs to you. Modern tort law has expanded (overexpanded?) this basic premise to encompass not only your body (assault, battery) and your property (trespass, conversion), but even your liberty (false imprisonment), your reputation (defamation, false light, image misappropriation), your business interests (interference), and your privacy (intrusion, public disclosure of private facts).

And while it is true that criminal law also concerns itself (sometimes) with "the violation of individual rights," modern criminal law muddies the waters with questions of rehabilitation and deterrence. Not that there's anything wrong with seeking to create an environment of rehabilitation and deterrence — it's just that those goals are secondary from a libertarian perspective. Tort law is far more pure in its libertarian roots. And there is far more potential, by orders of magnitude, for "anti-libertarian" criminal laws than for "anti-libertarian" torts. (Contracts could also be considered "libertarian law" in a sense, but in fact much of contract law turns out to be, at least in my opinion, arbitrary at best and downright un-libertarian at worst. Maybe that will be the subject of a future blogpost. I also wanted to discuss negligence in this post, but I will also leave that for another day.)

It's unfortunate that lay libertarians have little choice but to limit their exploration into "the law" to constitutional and criminal law. For the foundation of "libertarian law" is clearly torts — and appreciating the logic of tort law is a good, perhaps the best, primer for appreciating the foundations of libertarianism.