Free Speech and the Capitulation of the SPLC
The SPLC, which had already removed the “Field Guide” from its website in April, issued a retraction and an apology—and agreed to pay Nawaz a $3.4 million settlement.
Two years ago, when the (once-) venerable Southern Poverty Law Center published a “Field Guide to Anti-Muslim Extremists,” there was widespread outrage over the fact that the SPLC’s list included not only bona fide Muslim-bashers but also British liberal Muslim Maajid Nawaz—the head of the anti-extremist, reformist Quilliam Foundation. Nawaz later announced his intention to file a crowdfunded defamation lawsuit against the SPLC. Now, he has won an impressive victory. The SPLC, which had already removed the “Field Guide” from its website in April, issued a retraction and an apology—and agreed to pay Nawaz a $3.4 million settlement. This week, Nawaz is scheduled to meet with SPLC president Richard Cohen, hoping both to find out more about the circumstances of his listing and to “educate” Cohen about the conflict between fundamentalism and reform within the Muslim community.
A happy ending? Certainly, for Nawaz and his supporters: Commentary contributor Sohrab Ahmari writes that “it’s good to see the SPLC held to account for at least one of [its] smears” against people who don’t toe the progressive party line. Yet a number of commentators who have been sympathetic to Nawaz, and harshly critical of the SPLC’s decision to put him on the “anti-Muslim extremist” list—such as Atlantic writer David Graham—find his win troubling. “Though it inspires good feelings about fairness and truth,” wrote attorney and blogger Ken White (also known as ‘Popehat’), “it ought [to] also inspire concern about free expression and our broken court system.” Reason’s Robby Soave writes that, while the SPLC “really screwed up here, and it was right to apologize,” the settlement could end up chilling free speech.
Of course, even in the United States, which has the world’s strongest speech protections under the First Amendment, libel and defamation are not protected (though a few maverick libertarian absolutists have argued they should be). But opinions, unlike factual claims, cannot be legally considered defamation. That’s why the critics are worried: they believe Nawaz’s threat of legal action and the SPLC’s surrender may muddy that distinction.
Pamela Paresky
Had the SPLC made a false statement of fact—for instance, that Nawaz supported internment camps for conservative religious Muslims—the grounds for a defamation suit would be indisputable. In this case, there was some quibbling over the accuracy of the “Field Guide’s” factual claims. (Was Nawaz’s support for policies banning face veils in some public buildings a call to “criminalize” the niqab? Did a list of nonviolent Islamist organizations that he included in a report to British security amount to a blacklist?) But the real issue was his designation as an “anti-Muslim extremist,” and that, critics of the settlement argued, is ultimately a matter of opinion. While the basis for that opinion was bizarre—one of the things held against Nawaz was that he had tweeted a Mohammed cartoon—White notes that “drawing an irrational, unfair conclusion … is simply not defamation.”
White, Soave, and Graham believe this is a slippery slope. In an earlier blogpost taking issue with Nawaz’s planned lawsuit, White accused Nawaz of trying to “police political speech he doesn’t like through litigation.” As evidence, he cited a post on Nawaz’s website stating that legal action could deliver “a warning to those who think they can throw around damning labels like ‘Islamaphobe’ [sic], ‘racist’ and ‘Nazi’ without any evidence and simply get away with it.” White believes that, although the SPLC in its current form deserves plenty of criticism for sloppy labeling, its conduct is “classic political speech” protected by the First Amendment. Making such speech actionable, White and other critics say, creates a dangerous precedent.
It’s also worth noting that Nawaz is part of the so-called “Intellectual Dark Web,” the informal network of cultural dissenters whose shared values include a strong commitment to freedom of speech. Should fellow ‘Dark Webbers’ take a dim view of the settlement? Is it hypocritical for them to side with Nawaz?
The answer is complicated. The SPLC is not a blog or a news and opinion site, or your run-of-the-mill activist group. It is a legal advocacy and civil rights organization that, over its almost 50-year existence, has gained national recognition as the foremost authority on hate movements. Established in 1971 in Montgomery, Alabama, it fought the Ku Klux Klan and other white supremacist groups by filing lawsuits on behalf of their victims. It has also provided information on hate groups to law enforcement.
Because of its history and (former) reputation, the SPLC enjoys a special status that gives its opinions the cachet of fact. To say that a group has been “designated as a hate group by the SPLC”—or that a person has been designated as an extremist—carries the weight of more than mere opinion; it’s a quasi-official mark of pariah status. As Ahmari wrote, “Once the … outfit mislabels an individual or an institution this way, it becomes nearly impossible to clear the taint, since many reporters mistake the SPLC for a bona fide rights watchdog.” That’s what made Nawaz’s inclusion on the “anti-Muslim extremist” list so potentially damaging. In that sense, the SPLC was a victim of its own success at image-building.
Of course, just because the SPLC’s opinions are often issued and treated as statements of fact, that doesn’t mean that they are facts in a legal sense (as White has pointed out in a different context, just because some privately owned social media platforms present themselves as public spaces and often feel like public spaces doesn’t make them such legally). If Nawaz’s lawsuit had gone forward, the SPLC’s attorneys could have tried to argue that the Center’s list of “anti-Muslim extremists” was only an expression of opinion. But that would have required the SPLC to renounce any claim to special authority and expertise—and, in effect, to undermined its own raison d’être.
Perhaps that’s why SPLC leadership was willing to accept a settlement that amounted to a total capitulation. It is also possible that, as White speculates, they were worried that “discovery would have revealed ugly things about the SPLC’s process of writing such lists.” (Nawaz believes they may have taken their guidance from Muslim advocacy groups with an Islamist-leaning outlook.)
As White, Ahmari, and others have pointed out, in recent years the SPLC has increasingly departed from its own historical mission of combating extremist groups—particularly those that engage in violence and intimidation—and expanded its definitions of ‘hate’ and ‘extremism’ to include various groups and individuals that stray from the progressive creed. In 2010, SPLC designated several conservative groups that advocate moral and social traditionalism—the American Family Association, the Family Research Council, Focus on the Family, Concerned Women for America, and others—as anti-gay hate groups. The move drew criticism not only from conservatives but from liberal pundits such as the Washington Post’s Dana Milbank.
This year, an SPLC report on “male supremacy,” which included some genuinely alarming material on websites that traffic in overt, vicious misogyny and sometimes advocate violence against women, not only conflated these groups with men’s issues advocates who eschew such hateful rhetoric (such as author Warren Farrell), but also included a gratuitous guilt-by-association attack on author and scholar Christina Hoff Sommers. The report asserted that “men’s rights issues also overlap with the rhetoric of equity feminists like … Sommers, who give a mainstream and respectable face to some [men’s rights advocates’] concerns.” When Sommers responded, the SPLC published a snarky retort that justified its earlier statement by pointing to her writings about academic and social problems afflicting boys and about inflated sexual assault statistics.
The SPLC’s labeling is not harmless. In 2012, a man attempted a terrorist attack on the Family Research Council’s Washington, DC headquarters and shot a security guard after a leading gay rights organization issued a press release referring to the FRC as a “hate group,” based on the SPLC’s designation. One can easily see why Nawaz, whose work involves countering radical Islamism in the Muslim community, would feel that the SPLC “put a target on [his] head” by branding him an anti-Muslim extremist.
Now, in the wake of the settlement with Nawaz, dozens of groups on the SPLC’s “hate” lists are reportedly pondering lawsuits. Could this have a potentially chilling effect on other speech that would normally be protected as opinion under the First Amendment? Perhaps, although the circumstances are probably too unique to undercut such protections in general. In any case, the fault rests primarily with SPLC for reaching far beyond its self-proclaimed mission.
If the legal system needs to draw a clear line between libel and opinion in defamation cases, the SPLC needs to draw a clear line between hate and opinion in defining extremism. Perhaps, when Nawaz meets with the SPLC’s Cohen, they can talk about restoring that distinction.
