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  • Christina Pesavento

Dubious Defamation Suits and Their Threat to Free Speech

America’s civil justice system is designed to right wrongs. When an individual believes that someone has committed a wrong against him, he can file suit. A court then determines whether the accused is responsible for any wrongdoing and, if so, what remedy is appropriate for the harm caused.

But what if the individual seeks not to right wrongs, but to weaponize the civil justice system against the accused?

That is precisely the goal of litigants who file defamation suits of questionable merit against media outlets or authors, often in response to articles portraying the plaintiff in an unflattering light. These individuals know from the outset their claims will likely fail in court. Nonetheless they sue, seeking not to hold speakers liable for supposed wrongdoings but to intimidate them.

The Latest Example: Litigants in Techdirt suit weaponize civil justice system against critics

Shiva Ayyadurai, the self-proclaimed “scientist, inventor, lecturer, philanthropist, and entrepreneur,” has made a name for himself by declaring that he invented email. He has also managed to earn a living, in part, by suing anyone who disagrees with his claim.

A year ago, Ayyadurai sued Gawker Media after one of its blogs published two articles critical of his dubious claim. After suffering a costly legal defeat in a defamation case brought by former pro wrestler Terry Bollea (also known as “Hulk Hogan”), Gawker shelled out $750,000 to Ayyadurai to settle the suit. The company subsequently went bankrupt, was sold at auction, and ultimately shut down; the offending articles disappeared from the web.

Having brought his initial target to its knees, Ayyadurai shifted his sights to his most prominent remaining critic: Techdirt, an independent technology blog that reports on legal issues within the industry. Techdirt also questioned Ayyadurai’s invention claim. Ayyadurai sued Techdirt for $15 million, an amount that would likely bankrupt the company.

From the outset, Ayyadurai’s chances of prevailing in court were slim. Even the most well-intentioned plaintiffs struggle to file successful defamation claims against the press. As a public figure, Ayyadurai bore an especially heavy burden under New York Times Co. v. Sullivan, needing to demonstrate that Techdirt published the alleged defamatory statement with “actual malice”—that is, knowledge that the statement was false or reckless disregard for its truth.

At best, Ayyadurai’s claim to have invented email is debatable. Well-documented evidence suggests that computer scientists at the Massachusetts Institute of Technology and the University of California at Berkeley developed electronic mail programs independently of Ayyadurai between 1965 and 1973. Moreover, Ayyadurai’s complaint challenged, not the historical facts surrounding the invention of email, but the conclusions drawn from those facts. The subjective nature of Ayyadurai’s invention claim, coupled with its disconnect from the evidence available, made it impossible to establish falsity, much less actual malice.

But again, litigants like Ayyadurai do not wish to prevail in court. Rather, they seek to intimidate and ultimately silence critics by dragging them through the civil justice system.

Why It Matters: Meritless defamation suits threaten free speech by using the justice system as a muzzle

Although a judge ultimately tossed out the Techdirt suit, the months-long ordeal had its intended effect. Mike Masnick, Techdirt’s founder and co-defendant, called the suit “extremely draining,” “tremendously costly,” and “a massive distraction.” He noted that the blog was forced to postpone new projects, delay existing projects, and substantially limit the time and resources it devoted to reporting endeavors while the suit was pending.

Like them or not, independent media outlets like Techdirt and Gawker provide vital public services in a democracy: they amplify the public’s voice; they advance the public’s right to receive information; and, perhaps most importantly, they enable the public to hold powerful individuals—including Ayyadurai himself—accountable.

Meritless defamation suits, on the other hand, enable powerful individuals to threaten the survival of media outlets that say unflattering things about them. Litigants like Ayyadurai have the wealth and resources to effectively put their critics under siege, forcing them to either submit to censorship, as in Gawker’s case, or divert their scarce resources to waging costly legal battles, as in Techdirt’s.

By silencing some speakers and chilling the otherwise lawful speech of others, dubious defamation claims threaten to turn the civil justice system into a muzzle. Those who value freedom of the press—and freedom of speech generally—should take note.


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