The Framers understood that free thought could not exist without free speech. Protection of free speech is a core value of American life. It is first among all the Bill of Rights, enshrined in the First Amendment to the Constitution, the organizing document of our government.
Not all speech is protected. Obscenity falls outside of First Amendment protection. So does yelling "fire" in a crowded theater or inciting a riot. So does defamation, i.e., false statements of fact that cause damage to the reputation of the victim.
But the First Amendment only protects citizens from the government, not private parties. What about those who exploit their economic might to suppress free speech?
It depends. There are limits to which private interests can invoke the power of the courts to suppress free speech because courts themselves are an arm of government. Criticism and opinion cannot be punished via civil suits because, by law, criticism and opinion are not defamation, but instead, protected speech.
However, that does not stop the powerful from abusing the justice system to silence their critics. They don't always get away with it, but they certainly do try. Large corporations and individuals with deep pockets sometimes can suppress criticism with the mere threat of a lawsuit. Such lawsuits happen much more often than you might think. You can even get sued for making fun of Barney, the purple dinosaur!
Often, average citizens have neither the time nor the money to successfully defend their free speech rights in court. But not everyone bullied with baseless defamation suits backs down. The airline Alitalia gave up only when the embattled consumer received free representation from Ralph Nader's Public Citizen.
It isn't always big corporations throwing their weight around. Sometimes, all it takes is having an attorney in your family. I was sued for defamation for the statement "Todd Layne Cleaners Sucks and Is Overpriced," an opinion I formed after repeatedly receiving rude, shoddy service. The "Todd" in Todd Layne Cleaners is Todd Ofsink. His brother Darren co-founded a law firm called Guzov Ofsink.
Clearly, my view that Ofsink's dry cleaning "sucks" and is "overpriced" is my opinion. I presented that opinion in the "marketplace of ideas" Oliver Wendell Holmes envisioned as shielded by the First Amendment. Such a free exchange of opinion about commercial experience allows consumers to make informed choices about where to spend their hard earned dollars. It is the "word of mouth" by which good businesses flourish and bad ones fail.
As the U.S. Supreme Court said in Edenfield v. Fane, "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience ... assess the value of the information presented." Unless, of course, the speaker is silenced from communicating with the audience by a baseless defamation suit.
These cases frequently take hundreds of hours and tens of thousands of dollars to fight. Courts work slowly, and the system is designed to let cases be heard. Unlike Ofsink, I don't have family legal resources at my disposal without cost. Thus, I had no choice but to do what lawyers call "having a fool for a client": defend myself in court.
But I do have the First Amendment on my side. And I'm confident that, ultimately, it will drive Ofsink out of court, as he will not be able to withstand publicity about his abuse of the legal system for such an ignoble purpose. In business – especially in America – the motto "the customer is always right" conveys the notion that, in a competitive environment, the successful vendors will strive to please the consumer. But not Ofsink. Instead, his motto seems to be, "if you don't like my service, keep your mouth shut or I'll sic my big brother on you and sue." Too many Americans have been bullied by the Ofsinks of this world.
So far, I've spent hundreds of hours defending my right to express my opinion about Ofsink's sub-par services. And as the case progresses, I'll be posting the court documents here so the public can see this nonsense for what it is. I am confident that the Court will eventually see this, too.
In the process of defending myself against this ludicrous defamation case, I'm learning the very real costs of defending the principle of free speech. My purpose here is to help the public understand what's at stake. Free speech is constantly under assault, and not always from obvious enemies.
Sometimes, it can just be from your not-so-friendly neighborhood cleaners.