TIme for ACLU to defend free speech
By: JIM TRAGESER - Staff Writer | ∞
Correction: Trageser column was wrong
In Jim Trageser's April 1 Perspective column ("Time for ACLU to defend free speech"), he made two factual assertions and a challenge that he now retracts. - Trageser was wrong to assert that the ACLU of San Diego and Imperial Counties filed a legal brief in an Operation Rescue lawsuit against the city of San Diego, and that the local chapter supported campus speech codes. In fact, from 1998-2000 the local chapter of the ACLU successfully defended a UCSD student against one such speech code.
Finally, Trageser acknowledges that his challenge to the local ACLU chapter to provide legal representation to two anti-illegal immigration activists was unfair in that the ACLU would be prevented from doing so by conflict of interest rules governing attorneys.
Trageser and the North County Times apologize.
If the local chapter of the American Civil Liberties Union stands for anything at all anymore, it will provide a pro bono legal defense to Jeff Schwilk and Ray Carney.
Which might seem ironic at first blush, as it's a former contract employee of the local ACLU who is suing the two men, both activists who support stricter enforcement of laws against illegal immigration.
As reported in this paper Wednesday, Joanne Yoon filed suit against the two men last week alleging she was "offended" by comments the two men are alleged to have made calling her an "ACLU slut."
Oh, and she wants $1 million.
In the past, the ACLU has vigorously defended not only the right of individual Americans to freely speak their minds, but the value of a loud, boisterous political exchange.
And if the local chapter's record on defending free speech is more spotty ---- from having endorsed campus "speech codes" to filing a legal brief defending San Diego police who used "pain compliance" on anti-abortion protesters ---- this is a perfect chance to do right by the First Amendment.
For whatever Schwilk and Carney did, they did not defame Yoon ---- and should a jury or judge reject common sense and legal precedent (not exactly unheard of in this day and age) and side with her, it will make legal targets of anyone who makes pointed criticisms of their political adversaries.
But Yoon's case is problematic on several fronts.
To begin with, she's a limited public figure on the issue of illegal immigration. Once you show up at rallies with a video camera and start taping folks (which is where the paths of Yoon, Schwilk and Carney crossed), you're no longer an innocent bystander. Yoon voluntarily inserted herself into a divisive issue in a public, visible manner. Just as a newspaper columnist is open to more vigorous criticism and has a much harder time proving defamation than an ordinary citizen who doesn't speak out, so is any political activist.
Then there's this, which truly ought to concern not only the ACLU but all of us: If calling one's political opponent an "ACLU slut" is found to be slanderous and/or libelous, then all kinds of folks are going to find themselves in the cross hairs of legal beagles.
Whether a dated pejorative like "slut" is even defamatory anymore (to agree that it is, one has to buy into the gender double-standard on sexuality that most feminists and not a few men would utterly reject) is open to debate.
But the invectives hurled at Schwilk and other anti-illegal immigration activists has been far harsher than what Yoon is suing over. If Yoon prevails, how long before Schwilk and his cohorts are suing pro-immigrant activists who have called them vigilantes and racists? Being branded a racist in today's climate is far more damaging than being called a slut.
Look, Yoon's lawsuit has all the hallmarks of violating California's legislation against SLAPP suits ---- or "strategic lawsuits against public participation." Asking $1 million for being called a slut seems no more than an attempt to intimidate Schwilk, Carney and their allies into silence.
I'm no lawyer, nor am I an ACLU member (although I'm often sympathetic to their causes). But this seems to me to be a slam-dunk chance to come to the defense of a First Amendment that could use a few friends right about now.
-- Contact columnist Jim Trageser at (760) 631-6628 or jtrageser@nctimes.com.
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PI License wrote on Apr 1, 2007 6:43 PM:People in glass houses should not throw stones. It is a misdemeanor to engage in the business of private investigator without a license from the State of Californa (B&P Code 7523). A private investigator is a person who for any consideration whatsoever engages in business or accepts employment to furnish or make any investigation for the purpose of obtaining information with reference to:(a) Crime or wrongs done or threatened against the United States of America or any state or territory of the United States of America. (b) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person. (c) The location, disposition, or recovery of lost or stolen property.(d) The cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property. (e) Securing evidence to be used before any court, board, officer, or investigating committee.
Damages? wrote on Apr 1, 2007 6:52 PM:Now let us assume that calling an annoying person who videotapes your every public move an ACLU slut in an email to a few hundred person is defamation. Let's move to the damages phase. Some person took a copy of that email to the NCTimes. Obviously, that was not Schwilk. That person's intent may have been to get the NCTimes to write an article about the comments. Why did the NCTimes publish it? Was it with malice? To this juror in the court of public opinion based on now available public information, I award $20,000 to Mrs. Yoon. For his distribution to 0.01% of the public, Schwilk must pay $2. For causing distribution to 99.99% of the public, the person who leaked the email must pay $19,998. If the NCTimes fails to release its source for the email, then it should pay the $19,998. Good luck to Ms. Yoon in collecting from the mystery person who leaked the email to the papers with the intent that it get published!
Employment Classification? wrote on Apr 1, 2007 7:04 PM:This article could be defamatory. All previous information points to Joanne Yoon being hired as an INDEPENDENT CONTRACTOR. But the writer called Joanne Yoon a contract EMPLOYEE (all indications may give a good basis for her being classified as a contract EMPLOYEE!) http://www.irs.gov/businesses/small/article/0,,id=99921,00.html The IRS has published guidelines for understanding the difference.
Pazook wrote on Apr 2, 2007 5:40 AM:At least the "incorrect" part of your identity slogan is right. These two garbage mouthed would be tough guy Minutemen apparently went considerably further in their bad mouthing of Mrs. Yoon. And to even suggest that these two might be exercising civil liberties is proof that opposites attract.
Jim Trageser wrote on Apr 2, 2007 2:36 PM:Kevin Keenan over at the local ACLU office e-mailed me to point out - correctly - that the ACLU could not possibly defend Schwilk and Carney due to conflict of interest rules regarding attorneys. I should have known that - and apologize to the folks at the San Diego chapter of the ACLU for beating them upside the head over something they can't actually do anyway. Had I known that, I would obviously have issued a different challenge: Rather than providing a legal defense, I would have - and now do - challenge the local ACLU to take a more prominent role in speaking out against defamation lawsuits against public figures; even those involving limited public figures like Yoon. And I promise not to sue them for defamation if they write a rebuttal to my column (which I hope they do) - even if they call me mean names like "opinion whore" ... ;-)
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