By Kent Willis, Executive Director
Early in Shakespeare’s King Lear, the obstreperous ruler warns a member of his court not to question his rash decision to expel his devoted daughter Cordelia and divide his kingdom between her two conspiratorial sisters.
“Come not between the dragon and his wrath,” Lear growls shortly before banishing the loyal subject who dares to tell truth to power.
I feel a little like that loyal subject, as I take on Judge Melvin R. Hughes, Jr. of Richmond, who has filed a $1.7 million defamation lawsuit against The Richmond Voice, a local minority newspaper, for unkind remarks made in an editorial. Whatever the consequences, I’m going to tell Hughes what he should be hearing from those who are closest to him-- that if he pursues this litigation, he’s making a precipitous, regrettable decision probably for himself personally, but almost certainly for the constitutional principle and practice of free speech.
Hughes’ case apparently turns on a sentence that appeared in The Voice on March 24. Unhappy about an adverse ruling from Judge Hughes in another case, a writer for the newspaper wrote on the op-ed page, “We were naïve…We did not take into account the politics played in a courtroom—between judges and counsel….”
That’s strong language, indeed, but it appeared as an opinion piece in a newspaper, and its target is a public figure. In other words, from a free speech perspective, this scenario presents us with the type of individual (a governmental public figure) least protected from public opinion filing a lawsuit against the type of individual (an editorial writer for a newspaper) whose right to express her opinion is the most protected. It almost doesn’t make sense.
Public figures get and deserve the least protection from public scrutiny because they choose to expose themselves to the public, they are paid by the public’s tax dollars, and because it is important to the health of our constitutional government and our democracy that they are accountable to us all. They are, sometimes deservedly, sometimes not, the catchers of rotten tomatoes in our society, and by both tradition and law they cannot be thin-skinned.
On the other side, we have editorial writers for newspapers, the very essence of freedom of the press, the kind of people who get and deserve the highest order of protection because, right or wrong, they are our voice, our soap box, and because they are in a unique position to ask questions we want answered from those who serve us in government. If along the way they step over the line a little, better that than the silence that allows cancers so inevitable in government to grow unchecked.
As we all know, it’s downhill for Lear after he makes that fateful decision to evict Cordelia and hand over his property to her evil sisters. Oh sure, by the final act, after enduring a stream of indignities, destitute, homeless and forlorn, Lear manages to shed his royal blinders, strip down to his existential core, and see the light. By that time, though, Cordelia is dead, and he’s on death’s door. That, we are taught, is why King Lear is a tragedy.
So here is my plea to the judge-who-would- be-Lear: Take your lesson from Act I. Listen to me, a loyal subject of the Constitution, and drop this dreadful lawsuit. It is irrational, and it will lead to tragedy no matter the outcome.
If you lose, you will still have scarred a small newspaper, chilling every future criticism of a public official as its staff contemplates the cost of defending itself against another defamation lawsuit. If you win, your only bragging point, other than whatever money you stand to gain, will be that you managed, against the odds, to diminish freedom of speech, the closest thing we have to a pure article of official faith in this nation. For speech, good, bad or indifferent, is what truly makes us free, and it is the greatest protection we have against the kind of government abuse and corruption that threatens to make us less free.
Let private parties play the game of defamation, duking it out over what is true or not true, and what words have harmed or not harmed. As a government official, especially as a judge, take pride in the work you do in the court room every day. But when you go to work in the morning --and before you read your morning newspaper -- put on your thickest skin.
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