June 22, 2007

Language regulation in the courts

I already knew that the majority of defamation cases today are brought against newspapers, magazines, television, and radio. But among the many things I didn't know about libel law is what I just learned from the June 21 issue of Legal Times -- that nearly ten percent of all libel suits nationwide are filed by judges who charge that they were defamed by the media. Recent examples include Chief Justice Robert Thomas, head honcho of the Illinois state judiciary, who just won a seven million dollar verdict (later reduced to a mere four mill) against The Kane County Chronicle, a small Illinois newspaper. Another defamation case won by a judge is the suit filed by Massachusetts Superior Court Judge Ernest Murphy, who just won a $3.4 million libel suit against TheBoston Herald.

In his 1999 book, Legal Language, Peter Tiersma calls defamation "a variety of language regulation that prohibits the uttering of certain types of speech, more precisely, allows those types only in very specific circumstances." He adds, "a public accusation of wrongdoing is a linguistic act that lowers the status of an individual who has violated community norms." (304) Of course, defamation law is more complicated that that, but this isn't a treatise on law.

These two cases have caused a buzz in the law community, which has some reason to suspect that judges who become plaintiffs in defamation cases hold an unfair advantage. For example, Justice Thomas had six current and four former Supreme Court justices testify on his behalf. But when the newspaper's lawyers tried to cross-examine them, the justices invoked the "judicial deliberation privilege" and refused to answer. Then there is the interesting problem of judges judging judges, to say nothing of the fact that the justices who testified on behalf of Justice Thomas were assigned to hear the newspaper's appeal. Also there is the nagging problem that many judges hold elected positions, making them political figures -- and we all know what the media can to to political figures. As for lowering "the status of an individual," the article points out that Justice Thomas was named chief justice by his colleagues after the Kane County Chronicle articles were published.

Oh, the buzz.

So young Language Log readers who are still planning career paths might consider studying to become a judge. There's real money to be made, if you can just get the media to print some language that defames you.

John Cowan adds, "To make things worse, the contest is uniquely one-sided. Judges have an absolute privilege to defame anyone, falsely, maliciously, and irrelevantly...What a judge says from the bench is completely out of the reach of defamation law, not matter how outrageous it is."

Posted by Roger Shuy at June 22, 2007 11:36 AM