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Think back to your college days, and imagine this scenario: You wake up on morning to discover that flyers speaking of hatred towards a minority group are plastered all over campus, and written at the bottom of the flyer is……

In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the United States Supreme Court held, voting 8-0, that the First Amendment’s free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress intentionally inflicted upon them unless they can show that the statements that gave rise to the distress were false and that the person that made those statements knew they were false or acted with reckless disregard for the truth in making the statements.

Emphasis mine. The First Amendment does apply to civil law.

The burden of proof for YAF is exceedingly high, and that’s the way it should be. If people making political points are subject to lawsuits, that limits the marketplace of ideas and the nation weakens as a result.

YAF should be infuriated. They have every right to be. But that doesn’t mean the First Amendment doesn’t apply.

Actually, the First Amendment doesn’t apply. It only becomes an issue if the government tries to interfere with freedom of expression.

If YAF wanted to consider any kind of civil law recourse, they might start with defamation; but Rusty is probably right that it wouldn’t be likely to succeed. “Public figures” – and YAF likely qualifies as such – have to prove not only harm but actual malice, which is an extremely difficult burden of proof.

The other possibility would be misappropriation of a business or trade name, a species of business tort. But this would probably go nowhere. Civil law remedies are ordinarily measured in money damages: YAF would have to demonstrate some kind of compensable harm (hard to do in this instance), and hope that the people behind the bogus flyer had the money to pay for causing that harm (not likely).

Otherwise, YAF could ask for a form of prospective injunctive relief, but it’d be dicey whether a court would go along with that absent a showing of some kind of compensable or irremediable harm.

In short, other than confusing this for a First Amendment issue, Rusty raises a valid point about the dour prospects for any kind of YAF legal recourse.

Realistically speaking, the best that YAF can do, or have done on its behalf, is just what Michelle and others are doing: show who the real haters, the real losers and the real proto-fascists are, and let the audience decide for theselves who’s who.