For Some Reason We're Supposed to Believe the Southern Poverty Law Center Settling a Defamation Suit Is Bad for Conservative Speech

There are a lot of reasons why I’ve stopped describing myself as a conservative insofar as it applies to a part of the GOP, but one of the main reasons is the attitude conservatives have adopted of being a piñata filled with “muh principles.” There is this conceit that principles defend themselves and are self-evident to anyone who examines them dispassionately and actively defending them is beneath the collective dignity of the movement. This is simply wrong and dysfunctional. The worst example of this, of course, was during the George W. Bush administration where it was so infused with hubris of believing in its own righteousness and the approving verdict of history that it refused to fight back against a malignant press and a patently evil Democrat party that actually advocated taking actions that would result in MORE American casualties so to force Bush to withdraw from Iraq (this was made famous by the pustulent John Murtha who called it the “slow bleed” strategy). I could toss into this the reflexive impulse to attack other members of the GOP rather than pay any attention to Democrats and to perpetually defend any Democrat malfeasance by saying “well, we are no better.”

A couple of weeks ago something pretty significant happened. The officially sanctioned hate-group, the Southern Poverty Law Center, apologized to a guy named Maajid Nawaz for labeling him an anti-Muslim extremist. To show their sincerity, they wrapped that apology in a check for $3.375 million. The did this for exactly two reasons: the knew they had defamed Nawaz and they knew if this case got before a jury they were quite possibly headed into Gawker territory.

This was a manifestly good thing. SPLC has never been hammered like this before. SPLC is used by the FBI and DHS in an advisory role. Every report you read about the imminent threat of “sovereign citizens” and “militias” has its roots in propaganda distributed by the SPLC. YouTube allows SPLC to vet and ban videos for hate speech. So them labeling your group “extremist” has a huge impact on your ability to attract funding or members or even your ability to lobby your government. And they cast a very wide net in their slander. The Family Research Council, the Alliance Defending Freedom (this was lead counsel in the Masterpiece Cakeshop case), and Center for Immigration Studies have all been labeled hate groups. At least two attacks on conservatives have been directly tied to SPLC incitement. Both Floyd Lee Corkins, who tried to shoot up the Family Research Council headquarters, and James Hodginkson, who fired on the GOP congressional baseball team and nearly killed Steve Scalise, were prodigious consumers of SPLC invective.

The data point to keep in mind is that SPLC settled in this case because they knew they’d stepped beyond the bounds of defensible speech.

Now about 60 different groups are considering filing similar suits against the SPLC. One would think this would be a time when conservatives of all varieties could link arms and cheer. Wrong. Riffing off this piece by Ken White, who is generally lucid unless he’s writing about anything vaguely connected to Trump:

One of the most basic principles of defamation law, mandated by the First Amendment, is that pure opinion can’t be defamatory. Only statements of provable fact — or statements that imply provable fact — can be defamatory. I write about this constantly. An opinion, however moronic or unfair, is absolutely protected by the First Amendment unless it implies that the speaker is relying on undisclosed provable facts. So, for instance, “look at what this guy wrote, he’s a bigot” is by definition not defamatory; it’s based on an interpretation of a disclosed fact, the thing the guy wrote. “I’ve listened to this guy’s conversations and, let me tell you, he’s a bigot” might be defamatory, because it implies undisclosed facts — whatever you claim you heard.

Here, the SPLC’s fatuous Field Guide appeared to be classic opinion based on disclosed facts. The SPLC offered its opinion that certain people were “anti-Muslim extremists” based on facts it set forth and linked. Their conclusion appears unfair, narrow-minded, and uttered in bad faith, but opinions are absolutely protected whether or not they’re unfair, narrow-minded, and in bad faith. It’s possible that I have missed a textual analysis, but it appears to me that Nawaz’ criticism of the piece was that it unfairly characterized him based on facts, not that it got specific provable facts wrong.

This National Review article comes to this conclusion:

…At any rate, what is important to bear in mind is that the SPLC is here expressing its distaste for — and therefore its opinion of — people it dislikes. It has every legal right to do so. Conservative organizations should therefore resist the temptation to sue the SPLC for its opinions, however unfair or unprincipled.

Such lawsuits would also make the culture wars even nastier than they already are. For replacing argumentation with litigation raises a fundamental problem: American society has reached no consensus as to what the word “racist” even means. For some on the left, opposition to affirmative action is inherently racist. For some on the right, President Trump’s suggestion that a Mexican-American magistrate is incapable of judging him fairly is not a statement indicative of racism. Evacuated of all definitional coherence, “racist” is now a description so subjective that it has been rendered effectively meaningless. Court battles over accusations of racism threaten to convert our already visceral and tribal disagreements into disputes with legal (and financial) repercussions.

The way to oppose SPLC smears is with counterargument.

Further: The United States, as everyone knows, is growing increasingly polarized along political lines. Trump-administration officials have been heckled and harassed at restaurants; more and more people tell pollsters that they do not want their child to marry a member of the other political party. Lamentable trends such as these would only be exacerbated if conservative organizations resorted to litigation to settle arguments over “mischaracterizations” of their positions. We would advance from our already terrible status quo (“You’re racist!” says the Left; “No I’m not, you hack!” says the Right) to something even worse (“You’re racist!” writes the SPLC; “No I’m not, and I’ll see you in court!” responds a center-right organization).

Nor is there any reason to believe that a weakening of defamation-law standards would lead to unidirectional application of said law. After all, the SPLC itself could easily use libel laws to sue critics it finds disagreeable. (That might include critics who refer to its articles as frivolous and sloppy.) Nobody, however aggrieved, should hand softer libel laws to the SPLC in the name of fighting the SPLC.

The way to oppose SPLC smears is with counterargument. Or with outright dismissal — after the Nawaz case, taking the SPLC seriously has become even more difficult. Its descent can be accelerated by a simple tactic: Ignore it. There is neither need nor justification for silencing the SPLC with the power of the law.

This is malarkey. This is hogwash.

1. If an organization agrees to a settlement, by definition, they, or their legal counsel, didn’t think the claim of “opinion” was sustainable.
2. There is never a reason to negotiate with yourself. If you have the money to back you up there is nothing lost by filing a defamation lawsuit.
3. When an organization is using its “opinions” to damage businesses and organizations and to malign individuals, that opinion is no different than Tony Soprano expressing the opinion that you might have a couple of busted kneecaps by tomorrow. What the SPLC engages in is bullying and threatening the financial livelihood of completely legal groups they happen to disagree with.
4. The basic rule in dealing with bullies is that they never go away if you keep giving them what they want. The status may be terrible but it won’t be made better by bending over and grabbing our ankles. It will only get better when it becomes too painful for them to deal in these antics.
5. The SPLC can only sue if someone misrepresents them so there is no danger of them going all medieval on conservatives or even why we should fear this. They are already firing up loonies to try and kill us.
6. The “ignore it” argument is what got us gay marriage. As Erick Erickson famously said, “you will be made to care.” We don’t have the ability to ignore SPLC because they won’t ignore us. They are trying to silence guys like Ben Shapiro and they are trying to put out of business conservative non-profits. You fight fire with fire. If you aren’t ready to operate the “Chicago way”, you probably should be playing with your Play-Doh and singing along with Barney and not telling people in the fight how to fight.

I am just so tired of this policy of unilateral disarmament that I don’t want to be a part of the team that advocates it and I don’t want people who believe this quatsch near me.