Craig Wright and His Attackers
Craig Wright and His Attackers
This will be a general discussion, not legal advice, on the law of speech, especially as it involves another person. This is prompted by the recent Dr. Craig Wright drama of him suing or threatening to sue people for calling him a fraud. Much of it apparently happened on Twitter. I've never had anything to do with Twitter since it seems such a waste of time. But since I watch YouTube, I saw some of it.
Unjustified hatred for Craig
And I was flabbergasted with the amount of sheer unjustified hatred that some people seem to have for Craig Wright. Commenters seemed to try and outdo one another in their denunciation of him. At least one called him a convicted felon. I left a reply telling him he'd better not call someone a felon unless he could prove it. He referred me to where Craig disobeyed a court order or something. It was nothing really serious. He received community service for a month. It certainly did not seem to be a felony.
Unjustified Blame for Craig
But in addition to their unwarranted anger, they held Craig responsible! They blamed him for having started the whole thing by suing, as if nothing had preceded his threats to sue. If they stop calling him a fraud, I assume that he won't sue. Can't people figure that out for themselves? They just go along with the Twitter mob? Then finally someone said they had a First Amendment right to call Craig a fraud. That got me going, and it's totally wrong. So, I want to start there and clear that up first.
The First Amendment
The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech . . . ." Although the amendment specifically limits only Congress, the US Supreme Court changed its mind in middle of the 20th Century and decided that the First Amendment also applies to the states and local governmental agencies as well. So now, the First Amendment is implicated whenever there's "governmental action," usually passing a law that abridges speech.
Of course, if there's a war going on, the federal government gets around the First Amendment by using the Espionage Act, (which is, in fact, a law made by Congress that abridges the freedom of speech) to stifle dissent. But, in theory we all pretty much agree that the government should not tell its citizens what they can or can not say.
A good example is the anti-BDS laws some states are passing. They would probably all be struck down if the law simply says that you can't criticize Israel. That would be a perfect example of what the First Amendment protects us against. But they're probably worded as a contract. We'll hire you, but you must sign a pledge not to criticize etc. It'd be like a non-disclosure agreement, and courts uphold contracts.
How free is speech?
As far as "free speech" goes, the only free speech any of us really has is when no one else is around to hear. But if someone else can hear it, or read what we've said or written, then we're not free to say just any old thing that pops into mind. Speech can affect other people in a harmful way. Oliver Wendell Holmes, in a famous case, wrote that the law will not protect a man who falsely shouts "Fire!" in a crowded theatre. People could be injured by that one little word.
Defamation: Libel, Slander
In addition, and more importantly, speech can hurt another's reputation. Although we usually don't realize it, reputation is one of our greatest assets. There's a famous quote in William Shakespeare's play, Othello, that says it well.
"Good name in man and woman, dear my Lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."
For that reason, almost all states in the US, and most of the world, have laws against what we call "defamation." Defamation can be oral or spoken; then it's called "slander." Or it can be written; then it's called "libel." Defamation is the publication of a false statement that causes damages or harms the reputation of another. If you say or print something that harms another's reputation or opens them to ridicule, then you can be sued for defamation.
Everyone has a right to protect his or her own reputation, if not a moral duty to uphold everyone else's right to defend their reputation. There's a maxim in the law, "Those who sleep on their rights lose them." If somebody says something about you that causes you harm, and you don't sue, you not only lose your right, but are weakening that right for others. We should applaud Dr. Wright for suing, not criticize him.
I want to tell you about the law of defamation and, in particular, a subset of defamation called "defamation per se," which is slightly different. I hope this will enable you, in case you get into an argument or debate, to know something of what you're talking about, and it may also prevent you from saying something you might later regret.
What are Torts?
First of all, defamation is a "tort." A tort is an injury between persons. It usually doesn't rise to the level of' a crime. But it can be a crime. Both assault and battery are felonies in California with a possible punishment of one year in state prison. They're crimes, but they're also torts. In addition to the possibility of criminal prosecution, they expose the defendant to money damages in civil court.
The best-known tort is negligence. That's not a crime, but it can lead to money damages. Intentional torts can also involve punitive damages, which are designed to punish or discourage the defendant, and can be quite large, especially if the defendant has deep pockets.
But in general, the defendant's not going to jail. The plaintiff, if successful, can get money damages and possibly a court injunction ordering the defendant to stop.
Burden of Proof in civil cases
Torts are tried in civil courts. There may be a jury if either side asks for one, or the judge will decide. Normally the plaintiff has the burden of proof. However, the burden of proof is not, as it is in criminal cases, "beyond a reasonable doubt." Our legal system takes great care to insure that no innocent person is punished. So, the burden of proof in criminal cases is very high, much higher than in civil cases. Beyond a reasonable doubt is something over 90 percent. However, the burden in a civil case is "preponderance of the evidence," which means "more likely than not," or basically 51 percent.
Some detractors say that Craig Wright will have to move some early bitcoins in order to prove that he invented Bitcoin, and since he hasn't, therefore, he must be a fraud. But as Craig himself has pointed out, that's not true. Moving coins shows only that he has the keys, which he may have stolen. Possession of the keys is strong circumstantial evidence, but it's not proof. How does one actually prove inventorship? What may satisfy a court may be completely different from what the Twitter mob wants. It depends on the jurisdiction where the suit is filed. The United States, because of our history of freedom, tends to give more latitude to the defendant, but other jurisdictions or countries are more favorable to the plaintiff.
Venue: Where can you bring suit?
There are also rules for what's called "venue," where the plaintiff must bring suit. One venue is where the defendant lives. But with the Internet, you may not know where the defendant resides. Craig or Calvin, apparently, put out a reward for helping their lawyers locate one of the potential defendants. Some Craig-haters acted as if they had posted a "Wanted Dead or Alive" bounty. They just wanted to know where the person was so they could serve them and order them to court.
If you sue somebody, you have to actually hand the person you're suing two pieces of paper. Usually, you pay a "process server" to do it. One document is a Summons from the Court ordering the defendant to appear before that court on a specified date, at a specified time. You also have to give them a copy of the Complaint that explains why you're suing them.
How long will this take?
I'm not an expert at defamation, and it depends on the jurisdiction, but I think this is probably going to take a while. The law moves slowly. I saw a video where Calvin said he believes that this will be decided by the end of the year. It may. But I think this will probably die down for a while and then pop back up again, with likely another boost in the price of BSV. A year or two would not surprise me.
So, Dr. Craig Wright will be probably be in the crypto news again, whatever the public's view of him. But it's really a battle of the programmers, the developers. Will BSV programmers outperform programmers of other coins? We'll have to wait and see.
The reason trials take so long is a thing called "discovery." In a suit, both sides try to find out what evidence the other side has. They do "Depositions," which usually take place in a lawyer's office. They're not in the presence of a judge, but they are under oath. "Interrogatories," are written questions to be answered by an adversary, and they are signed under oath. All this takes a while, and often things come out in discovery that lead to other matters.
You may remember that a woman named Paula Jones sued President Bill Clinton for sexual harassment. In a deposition, under oath, he testified, apparently incorrectly, to other workplace relationships. That led to his impeachment proceedings. Who knows what will come out in discovery in this case? It should be more interesting than a Hollywood movie. I don't see this ending soon, but I would guess that Craig will win at least some of the suits.
Difference between defamation and defamation per se
In ordinary defamation, the plaintiff has to prove publication (someone other than the defendant heard or saw what the defendant said or wrote), that's it's false, that as a result the plaintiff has suffered damages, and that the inflammatory statement was not privileged. (A witness in court will not be sued in another court for what they say. Statements made by politicians in legislative sessions are privileged. Statements between an attorney and client are privileged.)
Public v Private Figures
In America, courts also make distinction between "public" and "private" figures. Statements about public figures are more protected. The plaintiff has to show "actual malice," which means the defendant knew that what they were saying wasn't true, or they were reckless with regard to the truth.
That line of reasoning came from a case called New York Times Co. v. Sullivan. For a public figure to successfully sue requires proof of malice or reckless disregard for the truth. An example would be the Justice Kavanaugh hearings last year. A woman claimed Kavanaugh had raped her years before. That's a serious charge, and some evidence emerged that she might be lying. To have a violent crime committed against you is a terrible thing. To be accused of a terrible crime that you know you didn't commit must also be very unpleasant. Some wanted him to sue his accuser. But the counter argument was that he was a public figure, and he would have to prove malice or reckless disregard for the truth.
If we go ever back to letting state Supreme Courts decide their own defamation laws, rather than the federal Supreme Court , this public/private distinction might be eliminated. Why should a public figure have a different burden of proof than a non-public figure? Is that equality under the law?
What is Defamation Per Se? (4 main types)
Now, let's look at defamation per se. Some of this may apply to Craig. But I think it'd be good for you to know this. There are four general kinds of defamation that are thought to be so injurious that the burden of proof, at least on the issue of damages, switches to the defendant. Normally the plaintiff has to "prove" their damages. But in defamation per se cases, the defendant has to prove the lack of damages. The presumption is that the plaintiff has suffered damages. And if malice is shown, punitive damages are also available.
Here are the four defamation per se categories. First, if you say or write that someone has committed a serious crime or a "morally reprehensible act," you'd better be able to produce some court document verifying that. Calling someone a criminal is one of the most dangerous things you can do. That some people do and get away with it makes one wonder if there's something that someone doesn't want brought out, maybe in discovery. You hear people calling others a "pedophile." That's a serious charge. One of the YouTube presenters showed a picture of Calvin Ayers sitting among a Cuban girls dance or gymnastic team. The YouTuber let his imagination roam and spent some time dwelling on the point that the girls seemed underage. Sitting among underage girls is not generally considered a crime. But he came very close to calling Mr. Ayers a pedophile.
Another category of defamation per se is saying someone has a "loathsome disease." Those words are probably from an old case, but it means a contagious, usually sexually transmitted, disease, something that would drive people away from a person. Leprosy would probably fall in that category, too. In at least one case, calling someone HIV positive resulted in a large award of damages.
A third type is publishing that someone is unchaste or engages in sexual misconduct. The definition of what that means is undoubtedly changing, but false accusations of homosexuality probably qualifies as defamation per se. The example of Craig kissing a guy with the caption "Crazy Person", "Local Nutjob", and "Gay?" very likely qualifies. The image (which I'll try to add, if I can figure out how) is used as the thumbnail for a video that is clearly designed to show Craig in a negative light, or to make him less likeable. I've since been advised that the picture of Craig kissing another guy is real and not photo-shopped. But I'm still posting this image, for educational purposes, because I think it shows malice. And even if it is actual, then adding "Crazy Person, Local Nutjob" and "Gay?" to it makes it a derivative work of the actual image.
The fourth type of defamation per se are statements that imply the plaintiff has acted improperly in regards to their trade or profession, or is unfit to conduct their business or profession. Falsely claiming that a banker is an embezzler is defamation per se, because bankers, as a profession, are not supposed to embezzle, whereas claiming a banker drives over the speed limit is ordinary defamation.
Those are the four general categories of defamation per se that many places have. California even adds a few more. They're prohibitions on publications that would expose the plaintiff to ridicule, hatred, or contempt, including making statements that associate the plaintiff with the Communist Party.
The best thing, if you have to publish anything, is to preface your remarks with, "In my opinion." But even there, it's best not to call another person a nasty name. It's not going to help. Stick to facts and what you know to be true.
So, to sum up, I think legally Craig is on very good ground and is probably going to win. But it's not going to be right away. That cheers me up. But the stupidity, and the amount and misdirection of anger still bothers me. I think I'll just simply stop bothering with YouTube, and switch to Yours.org.