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If You Won’t Shut Up… (Update)

Update: The terms of service portion of this post has been updated below.

I mean, when it’s one person speaking out about being harassed and assaulted and receiving no satisfaction for reporting it, that you can ignore. It will blow over soon, right? But man, what a day–for you.

When another person comes out and reveals serious problems at the top of an organization asked to deal with the assault? Maybe you chatter a bit more about unrelated things. I mean, really, how long can this last? AND WHY WON’T PEOPLE IGNORE THIS LIKE THEY USED TO?

But when this stuff keeps coming out, when people keep telling us they’ve been ignored when they tried to report abuse? Well, then there’s only one thing to do: attack. Yep. Ad hominem for the…win?

Screen cap of tweet by Sara Mayhew. Text provided in the post.

@saramayhew: I don’t trust anyone who works for PETA to be not cray cray.

Screen cap of tweet by Miranda Celeste Hale. Text provided in post.

@mirandachale: @Humanisticus @NotungSchwert @Metamagician @D4M10N @BirdTerrifier @professorlack FTB has been reported to their web hosting provider.

Screen cap of tweet by Sharon Hill. Text provided in the post.

@IDoubtIt: PZ Myers is the Glenn Beck of “free thought”. I have no idea why anyone would listen to him for the past 3 years…

Screen cap of tweet by Sharon Hill. Text provided in the post.

@IDoubtIt: Isn’t libel and defamation against the rules of ISPs? Why are the contentious posts allowed to stand?

Screen cap of tweet by Miranda Celeste Hale. Text provided in post.

@mirandachale: @IDoubtIt I reported FTB to their ISP. I pointed out to the provider exactly what parts of the ToS are being violated.Haven’t heard back yet

Screen cap of tweet by Sharon Hill. Text provided in the post.

@IDoubtIt: @DisraeliEars @mirandachale PZ Myers slandering Ben Radford and Michael Shermer.

A little word on libel and slander, for anyone who wants to claim those instead of just making ableist slurs. I don’t care that most people don’t remember the difference between them (slander is communicated in person; libel is published). I do care that both slander and libel require that what is said not be true. Truth is an absolute defense against charges of either slander or libel in the U.S., as was recently affirmed in a high-profile case here in Minnesota.

So if you’re saying that a statement is libelous/slanderous, you are not saying that the matter is up in the air, or that the truth is unknown. You are saying that it is untrue. You are making a truth claim.

Moreover, you are making a positive claim that someone has broken the law. You are, in fact, making a claim that could turn out to be (say it with me now) libelous. So you might want to think very hard about taking that back, particularly if you’ve made that claim in a way that could damage someone’s livelihood, say, by taking down their website.

For example, here are the applicable parts of FreethoughtBlog’s hosts terms of service [Note, a previous version of this post pointed to the incorrect TOS; try these (pdf)]:

2. Restrictions: You agree that you will NOT use the Codero Services to:

2.1. Violate any applicable state or federal law and regulation, including, but not limited to, any copyright, trademark, patent, anti-piracy, or other intellectual property law or regulation, or encourage or enable others to violate any such law or regulation.

No one seems to be alleging we don’t have permission of the people whose words we posted, so this isn’t what Hale reported us for.

2.2. Transmit, distribute, post, store, link, or otherwise traffic in information, software, or materials that is offensive, abusive, inappropriate, malicious, or detrimental, including, but not limited to, those that:

Emphasis mine. I’m guessing this is where she decided we were in trouble, but this is (intentionally, I’m sure) very broad and vague. Let’s get into details.

2.2.1. Are pornographic, obscene, fraudulent, or discriminatory, including any containing nudity, erotica, profanity, or obscenities.

This is the restriction we’re most likely to be in violation of as a blog network, but not in this case.

2.2.2. Encourage, glorify, or promote illegal activity, violence, cruelty, discrimination, network marketing, or Ponzi-type schemes.

Not really our thing.

2.2.3. Exploit children, facilitate phishing, hacking, or identity theft, or defame, threaten, harass any person or group, or attempt to impersonate the identity of a third party.

Yeah, not so much.

2.2.4. Infringe upon a third party business, contractual, privacy, or fiduciary right.

Nope.

2.2.5. Contain malicious or applications code of any type.

Nuh-uh. Jason even got our comment preview function fixed up.

2.2.6. Make or facilitate any form of computer, server, or network attack or disruption.

Yawn.

2.2.7. Compromise, disrupt, or degrade the normal and proper operation of any computer, server,or internet system, including Codero’s systems.

Actually, if you take the first letter of every post on the network….

2.3. Send, post, host, or enable any offensive, abusive, inappropriate, malicious, or detrimental e-mails, blog postings, or instant messages, including, but not limited to, any types of mail-bombs or SPAM (“SPAM” is defined as any type of unsolicited e-mail that does not utilize “Double Opt-In/Single Opt-Out” methodologies).

Emphasis mine, again. This is probably what she reported us for. However, as with claiming libel or slander, what has been said on these blogs would have to be untrue in order for any of these to apply. If they are true, it isn’t the reporting that is offensive or inappropriate. It’s the situation that people have been putting up with for years. Nor is it abuse or maliciousness to tell the truth about what’s been happening.

It may be to someone’s detriment to tell the world that they’ve behaved badly, but see the information above about defamation. It to the detriment of the Catholic Church when we tell the world what they’ve done with regard to sexual abuse claims, but no one says we shouldn’t be allowed to talk about it.

2.4. Use or provide open proxies or Internet Relay Chat (“IRC”).

Thanks, but we have enough to do.

2.5. Host Camfrog servers or other server applications that are frequent targets of Denial of Service attacks or other types of attacks.

Nope. All good.

So we’re left with Hale making a claim to our hosting provider that we’re defaming somebody by telling lies and then documenting this on Twitter. That’s quite the risk to take. I wonder whether she’ll find it was it was worth it as an attempt to shut us up on this topic.

Comments

  1. great1american1satan says

    Yup. More fun with the Pit Crew. I wonder if the FtBorg cube will disappear by the time I hit send on this comment? O noes…..!

  2. doubtthat says

    Libel, no way, it’s SATIRE!!!!

    Isn’t that what they always say after photoshopping someone or subjecting some uppity, sass-mouthed Y-chromosome deficient human to an endless stream of randomly assembled insults?

  3. kellym says

    As long as Sara Mayhew continues being obsessively vindictive against people who support survivors of sexual assault, she has a guaranteed spot as a speaker at the James Randi Educational Foundation’s The Amazing Meeting. If she dared to even mention harassment at conventions, even harassment at conventions other than TAM, she would be blacklisted at TAM, like Dr. Pamela Gay probably was, and like most/all Skepchicks certainly are.

  4. Sassafras says

    @saramayhew: I don’t trust anyone who works for PETA to be not cray cray.

    This must be that “women bullying women” that Sara is always condemning.

  5. says

    I’m comforted that a luminary such as Sara E. Mayhew is on the case!

    Sorry, that was me from a parallel universe. I meant “What a dim bulb.”

  6. Goodbye Enemy Janine says

    Is it alright if I am dismissive of anyone who uses the term “cray cray”??

  7. says

    It occurs to me that this is the clearest example of someone in the skeptic/atheist community directly contributing to rape culture that I’ve seen that didn’t involve “I will rape ur fambly!” or the like. Miranda Celeste Hale is sending the message to rapists that if someone blogs rape allegations against you, someone else will have your back and try to shut the accuser’s blog down, regardless of the truth.

    (Crossposted)

  8. UnknownEric the Apostate says

    Y’all don’t want to get me started about Hale. She’s about the phoniest phony to ever phony. I’ll leave it at that.

  9. UnknownEric the Apostate says

    Ok, better, less nasty comment: if I didn’t know too well that this is exactly the result the ‘pitters are looking for, at this point I’d just say “Screw you guys, I’m goin’ home” to the entirety of organized atheism.

  10. A Hermit says

    They’re all about free speech until you actually start talking about the problem…

  11. ugfabian . says

    “Truth is an absolute defense against charges of either slander or libel in the U.S….” This is the only part I have a problem with. In a one on one situation, there may be no evidence that someone is lying.

  12. says

    It’s not one-on-one. Assuming truth, since that’s the situation you’re concerned with, it’s one-on-six, plus whoever witnessed the report to the event organizers, as long as that person/those people don’t lie while being deposed.

  13. Stacy says

    “Cray cray”? Seriously, fuck that shit.

    And is Miranda “cutesy poo” Hale really trying to infringe on PZ Myers freeze peaches? Tut tut.

    As awful as the reality behind these allegations is, I must admit I’m enjoying watching the likes of Hale and Mayhew make hypocrites and asses of themselves.

  14. Rieux says

    I do care that both slander and libel require that what is said not be true. Truth is an absolute defense against charges of either slander or libel in the U.S., as was recently affirmed in a high-profile case here in Minnesota.

    So if you’re saying that a statement is libelous/slanderous, you are not saying that the matter is up in the air, or that the truth is unknown. You are saying that it is untrue. You are making a truth claim.

    Would a lengthy bout of lawyersplaining be welcomed at this point? If not, my apologies; you’re welcome to flush what follows, Stephanie.

    Insofar as we’re talking about the technical definitions of defamation and libel, it’s true enough that accusing PZ of libel means declaring Jane Doe’s allegation false. I think it’s worth noting, though (especially in light of the ubiquity of the “truth is an absolute defense” meme—which is also correct as far as it goes), that that might not be a terribly useful response, in at least one sense: if any notion about whether his post was libelous were actually to be tested in a court of law, I suspect “But it’s true!” would be a very difficult and potentially very destructive defense to depend on.

    Truth is indeed an absolute defense to a defamation action, but procedurally, the much more important fact is that it’s an affirmative defense, not an element of the tort itself. What that means is that, in a hypothetical defamation suit filed by Shermer, Shermer would not be required to prove that PZ’s statement was false; instead, PZ would have the burden to prove it was true–insofar as he’s depending upon truth of the statement (rather than other potential defenses, one of which I’ll mention below) to protect him from liability.

    (I suspect that there would be an initial question of what, precisely, PZ’s statement about this case is. Is the statement PZ published (1) “Michael Shermer raped a person I know,” or is it (2) “A person I know told me that Michael Shermer raped her”? There’s an obvious argument to be made that (2) is what he actually posted, and (2) would be a hell of a lot easier for PZ to prove true. But I’m a little skeptical that courts would allow defendants out of defamation suits based only on that thin kind of foreground truth; by that standard, it seems like you could absolutely protect yourself from any defamation claim by alleging absolutely anything you’d like about your target, but then insulating yourself from syntactic responsibility for the allegation with some kind of Fox News-ish “Some people say” pretext. I presume courts have looked into this issue and decided how to resolve it, but it would take some substantial research to find out what that resolution is.)

    Anyway, relying on the “But it’s true” affirmative defense would quite possibly require PZ to, in very real terms, mount a full-blown rape prosecution of Shermer* and win it. One reads a lot in threads like the huge one on Pharyngula from last night about courts’ standards of evidence not applying to our community’s discussion of allegations like the current one against Shermer, and I agree entirely that they don’t and shouldn’t, as long as we’re not talking about technical legalisms. If PZ is forced to actually use truth as a defense to a defamation action, though, we would have to be talking about court evidence rules–and, as one also reads (once again entirely rightly) in these kinds of discussions, application of those standards can be just brutal to women who accuse men of sex crimes. In order to prove the truth of his statement, it’s hard to see how PZ could avoid calling Jane Doe to the stand, exposing her to everything that rape victims are invariably treated to in court. It would very likely be harrowing.

    So rather than “truth is an absolute defense,” which is correct but which, in this context, would be extraordinarily costly (in many senses of the term) in practice, I think the more useful response to claims that PZ has libeled someone is New York Times v. Sullivan. Under that crucial U.S. Supreme Court case, any defamation suit filed by a public figure (and Michael Shermer is indisputably that) requires the plaintiff public figure to prove “actual malice”–i.e., to prove that the defendant’s “statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

    Note, first, that Shermer would have the burden of proof on this element; he would have to put PZ’s alleged “reckless disregard” on trial, rather than PZ having to put Shermer on trial for rape. That’s vastly more favorable (and less destructive) ground for the defense to fight on. And, while I can imagine plenty of Slymepitters somehow convincing themselves that PZ’s treatment of Ms. Doe’s allegation has involved “reckless disregard of whether it was true or false,” I have a very hard time imagining a competent and impartial judge agreeing.

    The point of all of this (typically lawyerly) interminable blather is that I think the better response to claims that PZ has libeled someone is that PZ has obviously been very conscientious about the manner in which he has approached Ms. Doe’s allegation and the situation more broadly. He has clearly not acted with “actual malice,” which means he has not committed libel even if Ms. Doe’s accusation is false (which I don’t believe for a minute). PZ has acted in precisely the way that the U.S. Supreme Court has said for the last fifty years that we’re allowed to act when we publish statements about public figures.

    * One caveat: PZ would only (“only”) have to prove the rape by the civil courts’ preponderance-of-the-evidence standard, rather than the criminal courts’ beyond-a-reasonable-doubt standard. The preponderance standard would make the rape marginally easier to prove, but that fact would, I think, be cold comfort for Ms. Doe when Shermer’s lawyer does everything zie can to take her apart.

    (IAAL, and a litigator–but I’ve never litigated a defamation suit, and no one should take anything I post as legal advice anyway. Popehat’s a better source for this stuff, and I’m glad Jen is getting assistance from him.)

  15. hoary puccoon says

    Rieux @ 17–

    Thanks so much for laying that out. IANAL, but I served on a jury in a civil case, so I’ve known that in such a case the defendant is NOT innocent until proven guilty. The case is supposed to be decided on the preponderance of the evidence. Or, as we said in the jury room, “whose story makes more sense?”

    This business of throwing out “innocent until proven guilty” every time somebody posts a critical comment drives me up a wall.

  16. says

    Rieux – you are most certainly right about the ‘reckless disregard for the truth part’ (imagine if a Presidential candidate could successfully sue over everything said about them!), and the fact that both Myers and McCreight were clear about what exactly they were claiming – that they are reporting the claims of others – could very well help them in that regard. It’s not simply Fox News who use the ‘some people say’ thing – it’s common across journalism. I always see it as a cop out, but an intelectual /professional one, not necessarily having anything to do with protection from libel actions. Like you, I’m not sure what effect it would have in court – I wouldn’t automatically discount it. In any event that’s not, as you said, the first defence they would be raising in court anyway (and I doubt they would be going to court – they would have to wait in line behind all the Kerry’s a fake war hero, Obama’s a Kenyan Muslim, Bush planned 9/11 people – if anything were actionable, that would be!)
    By the way, I’m not a lawyer, just a Philosophy nerd with an interest in Free Speech, and the ethical issue of whether or not there should even be such a thing as libel law in the first place is a seperate question entirely.

    “The greater the truth, the greater the libel” William Murray, first Earl of Mansfield (definitely don’t hold me to the accuracy of that quote in court!)

  17. Rieux says

    All fair enough, Matthew. (For lurkers who are justifiably confused by my wall of text, Matthew is responding to my parenthetical paragraph that starts “I suspect that there would be an initial question.”)

    I always see it as a cop out, but an intelectual /professional one, not necessarily having anything to do with protection from libel actions.

    Yeah, but as I mentioned, it seems like someone could exempt hirself from defamation liability entirely just by saying “Some people say that….” Would courts really go for that?

    Obama’s a Kenyan Muslim, Bush planned 9/11 people – if anything were actionable, that would be!

    But my sense is that those don’t get litigated because of New York Times v. Sullivan (perhaps also with a dash of understanding on the potential plaintiffs’ part of the Streisand Effect), not “Someone told me that” + truth is an absolute defense. Orly Taitz and 9/11 Truthers don’t bother with that kind of Fox-ish pretext, do they?

    Anyway, it’s at this depth of analysis at which my lack of experience in actual defamation litigation becomes an issue. An attorney who has directly dealt with these kinds of cases (and, perhaps more importantly, the precedent besides NYT that gets cited in them) would have to answer these kinds of questions. Basically I’ve got nothin’.

  18. dogberry says

    Surely Shermer can accuse PZ of libel since the allegations he published have not been shown to be true? They may be true or false – I don’t know and neither does PZ. But those allegations will certainly harm Shermer, and it wouldn’t be hard for Shermer to show a trail of posts that would suggest malice is a factor. I think it irresponsible of PZ to repeat those allegations. The original complainant may well be telling the truth and should make her case to the proper authorities, and I wish her good luck if she does so. Trial by blog doesn’t sit well with me.

  19. says

    I’ve never been to the slymepit website.
    Can anyone tell me – does it happen to be on the internet? Hosted by some kind of internet provider of hosting-type services?

  20. aelfric says

    Hello–civil attorney with some defamation litigation experience here. Rieux–I think you have it quite right. For some reason “actual malice” is the standard that is oft repeated, but “reckless disregard” is out there as well. After New York Times v. Sullivan most of the precedent I cite tends to be at the state level. And the “someone told me” defense is a strong one practically, if not conceptually. In order to show reckless disregard, you would have to show that the alleged defamation happened when the defendant was aware of the danger not only to the plaintiff’s reputation, but the danger that the information was false. While it’s a bit up in the air, I think the Model Penal Code’s definition is instructive, that is, recklessness is beyond negligence. It’s not “knew or should have known” it’s that the Defendant knew there was a distinct chance of falsity. How you get beyond a defendant testifying that “I trusted this person,” I am not sure. Thus, reporting on what you are told or are hearing is not, theoretically a bar to a defamation action, but it’s a tough case to make. Forgive me for a jumbled post [it’s Saturday and I am at a campfire], but thanks for an enlightening discussion.

  21. says

    (Because if so, it must be safer to visit than I thought. No accusations, no defamation. Because otherwise, that would be all hippo critical and stuff.)

  22. dogeared, spotted and foxed says

    Given the amount of quiet warning that goes on at cons, Sara Mayhew must have been warned about Shermer, et al. It’s sad that she took that warning, applied it to keep herself safe but is now appalled that PZ has extended that warning to others who may not have her connections.

  23. says

    Rieux – whether courts would go for that is the question – whether or not they have in the past is a matter, obviously for research. I should add that, just saying ‘ some people say…’ would not be not enough – you would have to actually have someone saying it. As for the 9/11 truthers, they would rely on the actual malice part – that they either knew what they were saying was untrue, or had a reckless disregard for whether or not it was true. The Courts have set the later as a pretty high bar, making it near impossible for a public figure to (successfully) sue anyone who says anything about them. That’s we’re Myers and McCreight would go, and I think their diligence would be more than enough cover. An interesting part, however, which I don’t believe has been precisely addressed by the Supreme Court, is what exactly counts as a public figure. ‘Private’ individuals have a lower bar to surmount when suing someone for defamation(and we’re not talking about George Clooneys here). In any event, the Court seems to have gone quite some way to, in practice, abolishing libel (at least for public figures), without saying that libel laws are by their very nature against the First Amendment (the mere hint of a lawsuit from a wealthy individual against someone not as we’ll financed can serve as quite a barrier to free speech – Conrad Black did that for years, but with U.K. And Canada law, once lamenting his inability to sue someone in the U.S. This all before he went to jail. Jeffery Archer also did a right job of it!)
    Another interesting point with the politicians is not them suing someone, but someone suing them – politician giving campaign speech decries such and such, mentioning name of specific individual, etc.

  24. says

    Dog eared – if there was defamation going on, it was already going on before, with each and every ‘warning’. These recent publications have merely increased the potential damages award.

  25. davidwhitlock says

    My own prediction is that there will be no legal case brought against PZ. PZ could fill any courtroom with dozens, scores of freedom of speech defense lawyers working pro bono for him. What damages could PZ possibly pay on his academic’s salary? Crushing PZ, and making him homeless wouldn’t even pay the legal fees of the case that would have a possibility of doing so.

  26. Sili says

    @saramayhew: I don’t trust anyone who works for PETA to be not cray cray.

    I’m impressed.

    This is the first time I’ve seen a troll understand what an ad hominem is.

    Oh, did I say “understand”? Silly me.

  27. kellym says

    Given the amount of quiet warning that goes on at cons, Sara Mayhew must have been warned about Shermer, et al. It’s sad that she took that warning, applied it to keep herself safe but is now appalled that PZ has extended that warning to others who may not have her connections.

    In this comment, where Sara happens to bizarrely claim that Rebecca Watson never raised money for the JREF*, she complains that the warnings she received were “gossip.” Sara has used her target’s gossip as one of the justifications for her continued obsessive malicious Tweets/blog posts against her.
    I wonder if Sara will ever apologize for her continued vicious behavior to a person who was kind to her?

    *By the way, Sara Mayhew has never apologized for that particular lie about Rebecca.

  28. Rieux says

    Matthew @24:

    Rieux – whether courts would go for that is the question – whether or not they have in the past is a matter, obviously for research.

    Indeed. If I had a few hours and a client I could bill for the Westlaw time, I could put that answer together. It’s easier to ask an experienced defamation litigator, though.

    An interesting part, however, which I don’t believe has been precisely addressed by the Supreme Court, is what exactly counts as a public figure.

    Oh, there’s extensive jurisprudence from American courts on that issue. I’m not sure whether any/much of it comes from the Supremes specifically, but there are lots of published decisions dealing with public-figure status. It’s a complicated question—though not, I think, when it comes to someone in a position like Shermer’s.

  29. Sili says

    From kellym’s link:

    Now, I get messages from women who say they are scared to go to TAM for fear of being bullied by other women—either by Skepchicks who were there, or now that they aren’t attending, being shunned for “supporting” TAM by attending, and being labelled a gender-traitor, sister-punisher, chill girl.

    If these women really were getting bullied, why don’t they come forward?

    Isn’t it irresponsible of Sara to spread such malicious gossip about Skepchicks without any evidence and signed affidavits?

  30. dogeared, spotted and foxed says

    kellym, thanks for the confirmation and additional info. I haven’t kept track of Mayhew’s saga, epic though it may be, because it offers nothing new. “It didn’t happen to me, therefore no problem.” is just too common.

    Amy’s description of welcoming inclusiveness is par for the course with Mr. & Ms. Surly. I have seen both of them go out of their way to make people feel welcome. Her table at TAM was considered a safe zone, a place to find your bearings if you felt lost or overwhelmed. She is the person she described. I’ve never been able to understand how DJ, JREF, etc could toss her under a bus for no reason.

  31. dogeared, spotted and foxed says

    Ophelia, I should have been more clear. Intellectually I can understand how people who are dismissive of women will continue to be dismissive even to women who have been allies. This was made especially clear after Carrie Poppy’s statement.

    Emotionally, it just doesn’t make sense. Amy was a friend, a proven friend who greatly contributed in all measurable ways. Casually betraying her while simultaneously benefiting from that friendship is morally bankrupt and completely illogical.

  32. says

    Sili- On Twitter, Mayhew dismissed the claim from JenMcCreight that she took down her post after vague threats of a lawsuit, Mayhew knowing this was not true because she was ‘told 1st hand’. It made me think of all those things you listed above.

    PS – if Rebecca Watson or anyone else did engage in bullying at conferences, that would certainly be a serious issue that should be addressed; harassment policies would come in handy here.

  33. Rieux says

    Somehow I missed aelfric @22 the last time I read through this thread.

    Thanks for the kind words, aelfric!

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