Speak of the Devil: How to Fight Lies, Even by Institutions like the Court and the Church, When Your Only Tool Is Words, Part 2

Posted on October 16, 2022


In its commentary and tutorial about First Amendment protections, the last post promised to offer some suggestions to those who’ve been wronged about how to express their outrage and garner attention to their stories. This post doesn’t contain a personal anecdote but instead links to one on a different blog to demonstrate how this can be done.

See here.

There’s a tendency to assume that it’s acceptable to air a grievance once but not 1,000 times. This reflex reasoning seems to arise from a false application of “fairness” to freedom of expression. Speech need not be fair or kind or just, and one of the purposes of First Amendment protections is to shield speech that may be perceived as unfair, unkind, or unjust and to allow it to be disseminated widely.

In other words, the person with a story to tell can tell it on one blog—or on 100 blogs or other media.

People who’ve been misrepresented in court will know very well that loaded phrases like “restraining order” and “false allegations” can predispose the judgment of others. The post linked to above makes no use of either phrase.

This changes the optics, that is, how things look to third parties. And presentation should be an essential consideration for a would-be publisher of any kind of material.

This writer has concentrated on blogs as the preferred forum for those who’ve been abused by the system, because a blog author has sole control over what s/he publishes and where it goes. A person criticized by a blog author, for instance, the plaintiff in a malicious prosecution, must voluntarily choose to read what has been written about him or her. There is no “contact,” direct or otherwise. And blog authors are not accountable for comments left on their blogs. Comments are publications by other people.

Social media can be dicey if the cause of your complaint is legal mischief, because the “justice system” is not Internet-savvy, and a post on Facebook may somehow be tagged so that it could be construed as direct speech TO a person. There a writer has limited control. As the previous post emphasized, speech ABOUT a person (or other entity) is protected; speech TO a person may not be. So care must be exercised if the reader should opt to voice criticism on social media. It must represent speech to the world at large and must be immune from unintended redirection “by” the critic “to” the subject of his or her criticism. Blogs do not generate automated messages without the author’s knowing; a site like Facebook might.

A possible exception is if the subject of your criticism is another blog, in which case it would be wise to disable a function like this one on WordPress.com: “Attempt to notify any blogs linked to from the article.”

Note that the author of this blog has criticized the governance of a religious sect called the Presbyterian Church in America in several posts. In future, he may limit such “off-topic” posts to the site linked to above, which he could, completely within the letter of the law, dedicate to criticism of the church exclusively or to criticism of political organizations, of which the church certainly is one, whether its governors choose to acknowledge the fact or not: Whatever influences how people think, behave, and vote is political.

The First Amendment is particularly concerned with protecting political speech, which certainly includes speech about the government generally and conduct of the court specifically.

It may seem that the writer is advocating publications that chafe and nettle. Such speech is perfectly valid and, more to the point, may attract peripheral attention. Solely writing about courthouse injustices may garner the readership of those who sympathize because they’ve endured similar treatment. Broadening the focus of criticism also broadens the number of people who may have a vested interest in learning more and who may act on the information, for example, to promote reform.

Liars and the people who side with them are very intransigent; they don’t have changes of heart. More effective then than criticizing them alone may be to bring critical attention to bear on side entities in the gallery.

Broadening one’s focus can reap other rewards, too. Links on other sites, irrespective of whether a writer is criticized or praised, can boost rankings in search engine returns besides attract readers. Critics can be criticized, too, providing a writer with fresh subject matter, and criticisms may help the writer to hone his or her points. The attorney’s maxim, “No publicity is bad publicity,” is applicable here.

How do you criticize a critic? You relate what s/he says as a journalist, because that’s what you are, and you critique it in the third person: not “you say” but “[he or she] says.” You direct your speech to the public, that is, to the world at large, and to no particular individual.

For a more comprehensive overview concerning the intersection of topics covered in this post like civil injunctions, blogging, and the First Amendment, the reader is urged to consult the writings of constitutional scholar Eugene Volokh.

A final note: Not everyone is comfortable writing. Other potent means of criticism may be art (whether high art, collage, or a comic strip) or video. The First Amendment protects these forms of expression equally, and the same rules hold.

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*The reader may wonder whether it’s “OK” to wish an entity to be damned, as the title does in the post to which this post links. The answer is sure. The First Amendment protects all of these sentiments, regardless of their “disrespect” or “irreverence”: “The court be damned,” “The government be damned,” “The President be damned,” “The church be damned.” It wouldn’t make much sense, but expressing the wish that God be damned would also be constitutionally protected speech. Speech doesn’t have to make sense (some of the most interesting speech doesn’t), and wishes and judgments and opinions don’t have to be “right” or even justified to qualify as fully legitimated by the First Amendment. A person may despise tomatoes because they’re slimy. A person may despise lawyers (or a specific lawyer) for the same reason. And that person is fully entitled to. “A curse on [X],” “A pox on [X],” “To blazes with [X],” “To hell with [X],” etc., are equivalent if tamer versions of the same sentiment expressed above. All are protected.

**For what I hope are reasons the reader will find obvious, the sentiment, “The court be damned,” should not be expressed in court.