Of Libel, Slander, Petitions, and Conservation

When I read on Outdoor Hub that an online petition to the White House launched on November 20 called on the White House to declare the National Rifle Association, Safari Club International, Rocky Mountain Elk Foundation and other sportsmen’s organizations “domestic terrorist groups because they advocated predator management,” I had to chuckle. What came to mind was the old saying about “the pot calling the kettle black.”

The reason for this petition is stated as:

Groups like Lobo Watch, Big Game Forever, Idaho Anti-Wolf Coalition, Rocky Mountain Elk Foundation, NRA, Safari Club, etc., are a menace in our midst. Not only do many of them want our native predators like bears, wolves, wild cats, and the like decimated to the brink of extinction, but some of them have the nerve to harass, threaten, and downright intimidate anyone who dares to oppose them, even the government… It’s time to put these groups in their place and strike them down.

After a cup of coffee, I began to think about the petition. It was clearly naming certain groups and making accusations, which could result in damage. I wondered if such a petition could be libel, or inciting. (Note: libel and slander are common law terms for “defamation,” which means writing [libel], and speaking [slander] that are intended to cause harm to someone. Or, secondly, “inciting,” or purposefully trying stir up people to commit violence as in inciting a riot, or making threats, etc.)

I’ve worked with law enforcement on all levels since the late 1960s, especially about preventing violence and eco-terrorism, so I have a feel for this territory, but I wanted to ask some experts.

David Kopel is Research Director of the Independence Institute and former Assistant Attorney General of Colorado. Dave’s book about firearms ownership and democracy, The Samurai, The Mountie and the Cowboy, is, hands down, one of the finest books ever written about this subject.

“Yes, it could be libel, since it’s likely a knowingly false statement of fact, written with malice, and for the purpose of injuring the victim’s reputation,” Kopel related. “That said, it’s very difficult for public figures (including public organizations) to win civil libel suits these days. Laws about criminal libel vary widely, and some states have no such law. It’s possible that the statement could fall within the scope of some state criminal libel statutes.

“It’s not incitement in the sense that is covered by state or federal criminal laws. Pursuant to Brandenburg v. Ohio (1969), the First Amendment allows criminal punishment for incitement only when there is imminent danger of lawless activity. For example, an angry mob being urged to act violently immediately. When there is time for the listener to reflect, there’s no imminent danger.”

I shared Kopel’s opinion with some folks who run the various groups named in the petition, and that started an interesting discussion. The next morning I got a second e-mail from Kopel.

“I just realized a fatal problem with any sort of civil or criminal claim based on the ‘terrorism’ petition. Because they are in the form of a petition to the government, which is specifically protected by the First Amendment (separate from the freedom of speech), it is extremely unlikely that anything said in a petition could, even theoretically, result in civil or criminal liability.”

I got a second opinion from Texas attorney Ted Lyon, a former police officer and state senator, who has received numerous awards for his work as a trial attorney. Ted is especially interested in this petition as he is one of the prime forces that shaped the two-sentence rider to 2011 budget bill that caused wolves to be delisted.

Ted immediately pointed to the landmark 1964 Supreme Court decision of New York Times Co. v. Sullivan as the precedent. The New York Times ran an ad that criticized certain actions by the Montgomery, Alabama police department concerning civil rights, which included some errors. L.B. Sullivan, the Montgomery police commissioner sued the Times for libel in the state court and won, but the Times appealed to the US. Supreme Court, who overturned the state court’s decision, ruling that First Amendment protection of free speech is not dependent on the truth, popularity, or usefulness of the expressed ideas.

Ted added that the more important issue for predator management was that some groups had just filed three lawsuits challenging the US Fish and Wildlife Service’s decision to delist wolves in Wyoming. I plan on delving into this hot issue in future columns.

It seems likely then that the “domestic terrorism” petition was probably crafted by someone who has some legal expertise, and it’s real purpose is to draw media attention to the point of view of the petitioners.

If you go to the “We The People” website where petitions to the White House are found, you’ll find that anyone can create such a petition, so long as they register their name, e-mail, etc. As you might expect among the 150 or so petitions currently open, many are about guns. Others advocate ceasing payment of salaries and health benefits to the President and congressmen until they solve the fiscal cliff, protecting animals, and a number of other causes and issues.

Twenty-five thousand people must sign in support of a petition within a one month time period to get a White House response. The “domestic terrorism” petition was launched November 20. The petition did not get the required number of signatures by December 20, so it did not make the cut.

Most of the 150 or so active petitions don’t have many signatures. However, one that did gather more than enough signatures caught my attention. This petition calls for the government to secure resources and funding and begin construction of a Death Star, for national defense, by 2016. It has received 29,766 signatures, so I assume that in the near future we will hear from the White House about it.

Building a Death Star will not be easy as Darth Vader, Boba Fett, and Senator Palpatine have passed away. But, George Lucas plans to produce some more Star Wars films, so perhaps he can help the White House round up the necessary plans.

On a more serious note, if you’ve had any bad experiences with animal rights or eco-terrorism, which the FBI has called the number one form of domestic terrorism, one organization you should know about is the National Animal Interest Alliance (NAIA). These are pro-animal welfare folks–breeders, farmers, ranchers, researchers, hunters, trappers, taxidermists, furriers, zoos, circuses, etc., many of whom have had problems with animal rights organizations and people. NAIA works closely with the FBI and other state and federal law enforcement agencies. Good folks to have on your side in these times when anyone can go on the internet and say just about anything.

James Swan

James A. Swan, Ph.D is the Co-Executive Producer of the hit reality National Geographic Channel TV series "Wild Justice"; Producer of the 66-minute documentary "Endangered Species: CA Fish and Game Wardens", as well as the CEO of Snow Goose Productions, LLC, that produces documentaries, book trailers and commercials. James is the author and/or co-author of 10 award-winning non-fiction books about environmental psychology published world-wide in four languages, including two Book of the Month Club selections and Sustainable Futures Society award-winning Nature As Teacher and Healer; and one novel. James has published over 300 articles in major magazines. Prior to the Outdoor Hub he has been a columnist for ESPNOutdoors.com (10 years), and National Review Online (4 years). He has taught at the Universities of Michigan, W. Washington State, Oregon and Washington; consulted with federal, state and local natural resources and law enforcement agencies and lectured all across North America, and in Japan and the UK. As an actor, he’s appeared in 20 feature films including "Jack", "Murder In The First," and “Star Trek: First Contact”; the dramatic TV series -- "Midnight Caller," "Jesse Hawkes," and "Nash Bridges," and over 30 commercials and industrials. He’s consulted with and appeared on the "NOVA," "Ancient Mysteries," "Sightings," and "Modern Marvels," "ESPNOutdoors" TV series and written over 100 outdoor TV shows for Engel's Outdoor Experience, Sports Afield TV and Bushnell's Secrets of the Wild. More at: www.jamesswan.com.