Does O’Reilly not agree with Stossel’s interpretation of the law or does he think there should be a law?

Neither one of them gets the law exactly right. Stossel is right that hate speech is protected by the First Amendment (though hate crimes are not), and it is often difficult to determine when speech crosses the line to actionable conduct. On the other hand, Stossel fails to recognize the “fighting words” doctrine, which says that, in theory, there is some speech that is so provocative that is likely to create an imminent breach of peace. But on the other hand (am I running out of hands yet?), the Supreme Court hasn’t upheld a statute on the basis of the fighting words doctrine in a long, long time. Usually, statutes that attempt to punish fighting words are struck down as being unconstitutionally vague, so I think it is fair to ask whether the fighting words doctrine really has any bite left.

O’Reilly is even farther off the mark. He seems to think that any breach of decorum can be punished. That’s just not true. The First Amendment gives you the right to be rude, loud, wrong, disgusting, vile, etc., etc.

And,Colby, libel and slander are not hate speech. They are two entirely different things. Libel, slander, and defamation are about publishing a false statement of fact (not opinion) that hurts someone’s reputation in a pecuniary way; that is to say, intangible harm to a person’s feelings is usually not enough. Hate speech is speech directed at someone on the basis of their race, gender, religion, sexual orientation, etc. They are treated very differently. Libel and slander is illegal and can give rise to a civil cause of action (with the caveat that there are extra First Amendment protections if you are defaming a public figure or “limited purpose” public figure that make it almost impossible for the public figure to recover). Hate speech is protected so long as it is limited to pure speech. If it crosses the line actionable conduct, then it is a hate crime, which is illegal.

Atticus, is there an element of intent or knowingly publishing false info in the libel and slander laws?

Thanks.

Yes, defamation (I’ll use that word to cover both libel and slander) is an intentional tort, so you have to prove that the “publication” was intentional. So, for example, if you wrote something defamatory about someone in your diary, and the diary was subsequently stolen and published without your consent, then there is no intent and you could not be held liable for it.

Also, there are additional requirements if the person who was defamed is a “public figure.” In a seminal Supreme Court case called New York Times v. Sullivan, the Court held that a public figure cannot recover for defamation unless the defamatory publication was made with “actual malice” which they defined as “reckless disregard of the truth.” That’s a very difficult standard. In later years, they made the standard even more difficult in two ways. First, they redefined “actual malice” to mean “actual knowledge” of the falsity of the statement. In other words, “reckless” falsehoods are okay; only “knowing” falsehoods are punishable. (You’ll still see the “reckless disregard of the truth” language thrown around, but the Supreme Court’s St. Amant case is clear that you need to prove a “knowing” falsehood and not just a reckless one.) Second, there is a special evidence standard in public figure defamation cases. You’ve surely heard of the criminal burden of proof (beyond a reasonable doubt), and you’ve probably heard of the burden of proof in most civil cases (a preponderance of evidence). There is actually a third standard called “clear an convincing evidence.” It falls somewhere between a preponderance of evidence and reasonable doubt. In public figure defamation cases, actual malice must be proved by clear and convincing evidence.

Also, to make things even more difficult, there are two types of public figures: general purpose public figures and limited purpose public figures. A general purpose public figure is President Obama, or Madonna, or someone like that who is well known in the public eye. A limited purpose public figure is someone who is not famous to begin with, but interjects themselves into the public debate on a specific issue. For example, the “balloon boy’s” family would probably be considered limited purpose public figures for the purposes of publications about the balloon boy fraud, but not necessarily for other purposes.

The takeaway from all this is that the common law of libel and slander has been almost completely re-written in the last 50 years. Now, because of the constitutional requirements that started with New York Times v. Sullivan, it is virtually impossible for a public figure to sue for defamation. That’s why it almost never happens. You’ll occasionally hear a famous person say they’re going to sue, but then they talk to a lawyer and learn all this and find out that it is almost always a waste of time.

If you want a good, interesting read on all this, Anthony Lewis of the New York Times wrote a fabulous book a few years ago called Make No Law. It tells the story of New York Times v. Sullivan (which is an incredibly interesting story) but then traces the law as it has developed since then. You can learn a lot of law from it, but it’s told as a fascinating story that will keep your attention.

Thanks for the recommendation, AnonymousFinch. I’ve heard a lot of this about defamation torts, but not seen it all laid out in one place like this before. The book sounds like it’s worth picking up.

John surely belongs on FOX. He has all the required values: intellectually/morally/ethically. You go, John!

Linking from answers.com:
Assault and battery
Two separate offenses against the person that when used in one expression may be defined as any unlawful and unpermitted touching of another. Assault is an act that creates an apprehension in another of an imminent, harmful, or offensive contact. The act consists of a threat of harm accompanied by an apparent, present ability to carry out the threat. Battery is a harmful or offensive touching of another

The main distinction between the two offenses is the existence or nonexistence of a touching or contact. While contact is an essential element of battery, there must be an absence of contact for assault. Sometimes assault is defined loosely to include battery.

Assault and battery are offenses in both criminal and tort law and, therefore, they can give rise to criminal or civil liability. In criminal law, an assault may additionally be defined as any attempt to commit a battery.

At common law, both offenses were misdemeanors. Today, under virtually all criminal codes, they are either misdemeanors or felonies. They are characterized as felonious when accompanied by a criminal intent, such as an intent to kill, rob, or rape, or when they are committed with a dangerous weapon.

Intent is an essential element of both offenses. Generally, it is only necessary for the defendant to have an intent to do the act that causes the harm. In other words, the act must be done voluntarily. Although an intent to harm the victim is likely to exist, it is not a required element of either offense. There is an exception to this rule for the attempted battery type of criminal assault. If a defendant who commits this crime does not have an intent to harm the victim, the individual cannot be guilty of the offense. (end of quote)

If someone gets in your face and calls you a nigger or a teabagger, that is not assault. But if they threaten to touch you, then that is assault.. And if they intentionally touch you, that is battery.

Thanks very much, Atticus. That was a good read and very informative.

J. Baustain is essentially correct, but with a few caveats.

For the purposes of “assault” a reasonable apprehension of imminent battery is not necessarily the same thing as a threat. Two examples. If you are sitting on the other side of the room from me and I say, “Shut up, or I’m going to come over there and punch you.” That is a threat, but it’s probably not an assault because the punch isn’t imminent. On the other hand, if you’re standing next to me and I, without saying anything first, throw a punch at you with the intent to miss you, then there is an assault. Even though I never threatened you, and even though I intended to miss you (and did in fact miss you), while the punch was flying through the air you reasonably believed that I was about to punch you, and that is an assault.

Also, assault and battery aren’t the only laws at issue. For example, most states have criminal statutes against making “terroristic threats” (and that’s not limited to the Bin Laden kind of terrorism). If I say to you, “I hate you and I’m going to kill you and your family tonight,” that’s neither an assault (there is no imminent threat) nor a battery. But it is a terroristic threat and can be punished.

For the purposes of the First Amendment discussion, the point of all this is that sometimes it is difficult to sort out protected speech from illegal conduct. We have nice intellectual categories for things, but the lines blur in real life.

While it would be best if no one had cause to hate anything, the fact is we all have those things we hate. It is, therefore, within our rights of free speech to express that hatred. If our freedom of expression were limited, Maher, Moore, Madcow, Overbite, O’Donnell, Matthews, et al wouldn’t have jobs. I’m not saying that some of the right wing whackos do not spew hate speech from their filthy mouths–they do–but when it’s OK for the left-wing to spew their hatred, that privilege MUST equally to those with dissenting views. Otherwise, the First Amendment is meaningless. What rational people do is ignore hate speech and distance themselves from all who vend it.