Belief versus Expression

[steepholm]

This is a question that has long bothered me, but not enough to research the answer.

Let's say you live in a country with strong libel or hate-speech laws. If you write, for example, "X is a racist", and X has the resources to take matters further, you may well find yourself on the wrong end of a libel suit.

But, there is no law against having particular beliefs or thoughts. You're still allowed to believe that X is a racist, even if you can't write "X is a racist" in a newspaper without getting sued.

So, what about writing the sentence "I believe that X is a racist"?

It's a factual statement, and the fact that it reports on is unactionable (because it's a belief, not a statement). So, why do I get the feeling that X might still sue, and win?

Or, if X wouldn't win, why don't people use the tactic of prepending "I believe" (or equivalent) to every otherwise-actionable statement all the time, like some legal version of Simon Says?

I assume this is a matter that has already been well trodden by lawyers, and maybe philosophers too (phrases like "use-mention distinction" and "performative language" are going through my head even now), but what conclusion have they come to?

Comments

[greenwoodside]

Hmm, interesting. I'm hitting the brakes before I fall down into an internet rabbit hole of more stuff I know nothing about.

But it does sound connected to the 2013 Defamation Act where one of the defences is 'honest opinion'. My impression is that in the UK, tagging a sentence with 'I believe' or 'I think' wouldn't impress the judges. They'd be more interested in whether the problematic utterance is factually provable or not. Wasserman vs Freilich

Somewhat relevant blog entry.

[cmcmck]

Well,you and me are all too familar with hatespeech aimed at us and not of the haters ever seem to use that tactic knowing, I suspect, that most of us don't have the resources to sue!

[steepholm]

On the other hand, there are plenty of people who have been threatened by a certain deep-pocketed transphobe for daring to call them a transphobe, and who have been forced to climb down publicly because of it.

[hoodcp.wordpress.com]

Coincidentally, I'm listening to an episode of The West Wing Weekly podcast (Season 1, ep 13) where this is a theme. I'll be rewatching the actual episode later probably.

[steepholm]

If it yields any answers, let me know!

[calimac]

This sort of reminds me:

In the commie-hunting days in the US, accused persons were allowed to refuse to answer questions about their political affiliation on the standing of Fifth Amendment rights against self-incrimination. But if they answered any relevant question, they were held to have forfeited their Fifth Amendment rights and had to answer all other questions. There were attempts to refuse to answer questions on First Amendment grounds, that the right to free speech also included the right not to speak, but the courts disallowed that arguments.

So I wondered why nobody tried the tactic from an old Frank R. Stockton story about a man conversing with a sphinx, and wishing to avoid the risk that anything the sphinx might ask him would be a riddle, replied to anything by saying "I give it up. But I don't mind telling you, purely on my own volition and not in answer to any question, that ..." and then he'd continue the conversation.

[jadelennox]

But if they answered any relevant question, they were held to have forfeited their Fifth Amendment rights and had to answer all other questions.

That is still true, I believe, per multiple SCOTUS opinions.

That's why it's always shut the fuck up friday.

So I wondered why nobody tried the tactic from an old Frank R. Stockton story about a man conversing with a sphinx

Because the courts will hold against you if you do that. A US judge is not going to be stymied by this One Cool Trick to protect your rights, because they never have.

[heleninwales]

I don't know the answer. I suspect it wouldn't be a defence in the UK. However, a slight variation of this is a tactic Trump uses a lot. He'll post a statement on the lines of: "Many people are saying that....[insert outrageous statement here]." Would that work here as a way of posting defamatory statements? Again, possibly not if the person being mentioned has lots of money. One might be asked to show to the court who these people are.

[steepholm]

Yes, I'd read Trump's "many people" as a variant of the same tactic. (It does help, whether plaintiff or defendant, to be a billionaire.)

disclaimer: IANAL

[jadelennox]

In the US, people can use that tactic, although courts tend not to be idiots about people using it as a "get out of judgement free" card. That is, "JKR is a shitty, vile transphobe who is happily throwing cis women under the bus as long as it feels like she's hurting trans women" is a statement of opinion in a US court, whether you say "I believe" or not. Same with "Suella Braverman's a racist, xenophobic twit". Meanwhile "I believe the story that David Cameron fucked a dead pig on October 4th, at 2PM" is more wobbly, even with the "I believe", because there's an implication that I have receipts. Probably depends on the context, honestly; am I making allegations alongside my lawyer, or just talking on social media. (Since Cameron's a public figure he's almost impossible to defame in the US, but that's a different factor.)

I can say all those and I can be grateful that the US does this one thing pretty well.

(I'm not actually sure I can safely say all those things, TBH. Since I'm dual-national and more importantly I'm in the country frequently, it's probably not as safe as I want it to be, despite the SPEECH Act. Buy Imma gonna.)

Re: disclaimer: IANAL

[steepholm]

Speech Acts are all very well in theory. (That's my only J.L. Austin joke.)

[ashkitty]

I think it's a bit like sticking 'allegedly' in to something - in the US I think the 'I believe' would get you off (depending, however, on how serious the thing is you are 'believing'). Then again in the US you seem to be able to say pretty much any damn thing at the moment so there's that.

Unrelated, I am back in Wales - might you be up for a visitor or adventure of some sort this autumn sometime?

[steepholm]

That's marvellous news! Is it a permanent thing? Definitely up for visitors *and* adventures. Will message you on FB.