Over the course of a six-week trial, Depp pulled off a stunning reversal of public opinion. Just four years ago, Depp was a villain in the public’s eyes, after Heard made sensational abuse allegations (ghostwritten by lawyers with the ACLU) in the pages of the Washington Post. But Depp conclusively showed that he, not Heard, was the victim of long-running domestic abuse. And while members of the media class shrieked in horror, the vast majority of onlookers were happy to see Depp emerge victorious, extracting about $10 million in damages from Heard.
Captain Jack Sparrow’s big win is proof that America’s courts remain a venue where Americans can defend their reputations and win justice for themselves, without playing by the ever-changing rules of a sinister and malicious media. …
Want to strike a blow against cancel culture and the power of the media? …
Make it legally risky to throw around the allegations that are a canceller’s bread and butter. Expand defamation law, and make clear that bogus accusations of being a “racist” or “white nationalist” are factual smears and defamatory per se. …
Here’s how it will work:
“Defamation per se” denotes statements so inherently damaging that their false utterance is presumed to hurt the target, no matter what – even if he cannot prove economic harm. …
Traditionally, four types of false allegations have been considered severe enough that they constitute defamation per se:
- Claiming a person was involved in criminal activity
- Claiming that a person was unethical or incompetent in their professional conduct
- Claiming a person has some kind of contagious or loathsome disease.
- Claiming a woman is unchaste or has otherwise engaged in sexual misconduct …
It’s time for this list to expand. Today, there is no false accusation thrown around more freely, and with greater harm, than the claim that a person is a “racist,” “white nationalist,” or “white supremacist.”
It’s time that our courts adapted accordingly. America’s courts should adopt the standard that falsely accusing someone of being a racist, or of being a white nationalist, is per se defamation.
Why it is defamation per se:
Imagine you’re the typical American mid-career professional, a doctor or lawyer or college professor …. What do you fear more? Being falsely accused of having monkeypox, or of being a “racist”? Would it be worse to appear on your local newspaper’s front page under a headline suggesting you embezzled money, or one suggesting you are a white nationalist? The answer, we suspect, is obvious.
When Gawker published Hulk Hogan’s sex tape leak in 2012, it was deeply embarrassing but not otherwise devastating to his career. It was only in 2015, when transcripts from a longer version of the tape revealed Hogan saying the n-word, that Hogan was totally essentially un-personed. … The single greatest pro wrestler in history was blotted out like he never existed. For the WWE, Hogan’s choice of words was roughly as bad as Chris Benoit murdering his entire family.
The West’s most powerful institutions have repeatedly sent the message that there is absolutely no offense worse than being a racist. Countless rapes are committed in Central Park, but almost none of the rapists are as infamous as Amy Cooper, the “Central Park Karen” who was unfairly accused of threatening a black birdwatcher who serially followed and menaced dog owners like her. Even a vague adjacency to alleged racism is worse than almost any other offense….
People lose their jobs in the U.S. just for having family members accused of racism.
- In 2018, the WWE fired an executive because his wife was outed for making anti-Islam tweets.
- In 2020, the LA Galaxy soccer team cut a player because his wife (in Serbian) trashed rioters following George Floyd’s death.
- Holy Land, a restaurant and hummus brand in the Minneapolis area, was destroyed after activists dug up tweets the owner’s daughter made as a teenager eight years previously. Despite the owner firing his own daughter, stores yanked Holy Land’s products from shelves, a landlord evicted it from one of its restaurants, and ultimately nearly 70 people lost their jobs.
The burden of proof must be demanded legally:
Despite the enormous damage accusations of racism can inflict, there is little burden of proof for making such a claim. In San Diego two years ago, a utility company fired a Hispanic employee because he was photographed cracking his knuckles, and a hysterical liberal perceived it as a white power gesture.
At this moment in America, while it is possible to bring a defamation claim based on allegations of racism, succeeding is difficult. Courts routinely treat the smear “racist” as a statement of opinion, not fact, and can require proof of specific damages. That is absurd, and it gives the benefit of the doubt to sinister actors who gleefully use such tactics as a weapon. If a person becomes the target of an online lynch mob, that mob can bombard the media and their employers with grossly inflated and knowingly false accusations with essentially zero fear of of any consequences. …
Being presented as “somehow a racist” is far worse than merely being accused of being an incompetent or unethical professional. In the modern America civic ideology, “racism” is not mere “bad character,” it is an unthinkable taboo — practically a crime against humanity. Yet according to many courts, a false claim of racism is not inherently defamatory. This may have made sense forty years ago, but today such a standard makes no sense.
This is something that the courts have the power to change. But more importantly, it’s also something that state legislatures can change. Every state sets its own libel and defamation laws. A Republican legislature, right now, could pass a bill clarifying that false accusations of being a “white nationalist” or “white supremacist” (or a supremacist of any other race) are viewed by the state as utterances of fact, not opinion. Moreover, they are defamation per se, and will expose one to hefty damages if they are knowing lies, or spread with a reckless disregard for the truth. There is no reason such legislation cannot be passed tomorrow.
Would this have a “chilling effect” on public discourse? Absolutely, and it should, just as publications today are “chilled” from labeling random citizens as pedophiles, adulterers, or domestic abusers.
To borrow a line that supporters of cancel culture like to use, Americans wishing to smear others as “white supremacists” can keep their freedom of speech — but must forfeit freedom from consequences.
Come on conservatives, get a move on and disarm the left.