First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Wednesday, July 31, 2013

Prominent blogger is told Congressman's staff threatened him with a defamation lawsuit

Yesterday afternoon, Mike Masnick, editor of the Techdirt blog, stated that staffers for Rep. Mike Rogers (R-MI) told a Michigan-based reporter that Rogers, "could sue [Masnick] for defamation concerning things [he'd] said about Rogers."  On Twitter, Masnick stated that Rogers' office was "telling reporters that they want to sue me for defamation."

I asked Rogers via Twitter to confirm whether his office threatened Masnick, and, if so, what the basis for that threat was.  I got no response.  I also called Rogers' DC and Michigan offices after 9am local time this morning, but did not reach anyone who was able to answer my questions.  If the threat is genuine, it sure is tough to figure out what it could be based on.  Nevertheless, I tried to figure it out ...

Michigan has a one year statute of limitations for defamation claims.  So, I went through Masnick's Techdirt posts in the past year that concerned Rogers.  To me, they look like constitutionally protected opinion, or, to the extent they reflect any statements of fact, Rogers (as a public official) would have a very difficult time proving the requisite actual malice (knowledge of falsity or reckless disregard for the truth) even assuming any underlying factual assertions were false, which he would also have to prove. 

The most recent Masnick post about Rogers was an opinion piece from July 25 excoriating Rogers, who is Chair of the House Intelligence Committee, for his stance against the Amash Amendment that would have defunded sweeping portions of the NSA surveillance program, and for concluding a speech with what Masnick called the "obnoxious" suggestion that those in support of the Amash Amendment were only voting that way because of "Facebook likes."  I see no potential defamation claim there.  Instead, I see constitutionally protected opinion and some statements of fact tied back to a video of Rogers' speech embedded in the post.

Another story from a few months ago highlighted Rogers' purported conflict of interest in pushing for legislation that supposedly would benefit his wife's former company.  Saying a politician has a conflict of interest is, unless based on false information, protected opinion.  Saying it in the context of a heated debate about the merits of proposed legislation gets even further protection as the First Amendment's highest purpose is to protect political speech.  Furthermore, Rogers (a public official) and his wife (a public figure by virtue, at a minimum, of her marriage to Rogers) would have a hard time proving actual malice (as all public figures do) even if they could show that underlying statements were false. 

In another post, Masnick recounted the extraordinary backlash Rogers received from scores of people on Twitter when Rogers suggested that the only people opposed to the enormously unpopular CISPA cybersecurity legislation he championed were "14-year-olds in their basement."  Masnick also wrote an opinion piece deriding Rogers for that same comment.

Finally, Masnick shuddered at the thought that Rogers might be named the next director of the FBI.  Opinion.  Full stop.

I don't know whether Rogers endorsed any threats (veiled or otherwise) to sue Masnick for defamation, but the prospect that he did is disturbing.  Rogers is a powerful man.  He is in charge of the House Intelligence Committee in a time where more and more people are afraid of the power their Government holds over intelligence gathering methods. 

The threat of a defamation suit often stops speakers cold in their tracks.  It doesn't seem like Masnick has had that reaction, but it also looks like he has tougher skin than most (perhaps tougher than Rogers and/or his staff anyway).  In a tweet this morning, Masnick emphasized that the Rogers staff only said they "*could* [sue] likely knowing it would get back" to Masnick, but Masnick "doubts they're serious."

Let's hope: (a) there was some miscommunication about a threat to sue; or (b) any such threat was not serious.  It would be unbecoming for Rogers or his staff to threaten Masnick with a defamation suit.  To actually sue would be unseemly.

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