The SPLC Is in Serious Legal Jeopardy for Defamation Regarding Its 'Hate Group' Labels
On Monday, the Southern Poverty Law Center (SPLC) settled a defamation suit filed by Muslim reformer Maajid Nawaz, whom the SPLC maligned as an "anti-Muslim extremist." On Tuesday, PJ Media reported that no fewer than 60 organizations are considering similar lawsuits against the SPLC. The organization is still facing a lawsuit from D. James Kennedy Ministries (DJKM), a Christian organization falsely labeled a "hate group."
The SPLC is in serious legal jeopardy in the DJKM case at least, because its "hate group" labels arguably fit all the requirements for defamation. Most damningly, the SPLC attacked DJKM years before publicly admitting that "our aim in life is to destroy these groups."
The SPLC began as a civil rights organization, bringing a lawsuit against the Ku Klux Klan. In recent decades, the organization has begun marking mainstream organizations as "hate groups" on par with the KKK. Last year, 47 nonprofit leaders denounced the SPLC's "hate list" in an open letter to the media. The SPLC has admitted that its "hate group" list is based on "opinion."
Tragically, the "hate group" list — and a corresponding "hate map" — inspired a terrorist attack in Washington, D.C. in 2012.
John Rabe, a spokesman for DJKM, put his central complaint against the SPLC in a clear, pithy statement: "Stop lumping in Christians and conservatives with neo-Nazis and skin heads. Or if you’re going to do it, let everyone know you are just a far-left advocacy group and nothing more," he said.
"Defamation of character" is not a crime, but it is a "tort," a civil wrong for which a defamed person can sue the defamer for damages. Defamation law aims to balance the competing interests of free speech and public reputation. It is fundamentally important that defamation be limited so that political and social disagreement is fostered, not discouraged.
Defamation plaintiffs must prove 4 things to receive damages. They must convince a court that the statement is "published" (seen by a third party), objectively false, "injurious" (proving that the plaintiff's reputation was hurt and they lost tangible good things), and made in a context that is "unprivileged."
This final requirement is the most complicated. In many circumstances, published, false, injurious statements are not actionable on defamation grounds. Witnesses who testify falsely in court cannot be sued for defamation, and lawmakers are not liable for statements made in a legislative chamber or in official materials.
The rules also vary for public officials. Since a free press and free speech involve the ability to criticize officials, a politician (or celebrity) must prove one further element for defamation — they must demonstrate that the defendant acted with "actual malice."
"Actual malice" means that the person who made the statement knew it wasn't true, or didn't care whether it was true or not and was reckless with the truth.
It is arguable that the Southern Poverty Law Center's "hate group" designations fit all of these criteria, even the "actual malice" standard. Both the DJKM case and the Nawaz case demonstrate strong examples of actionable defamation.
First, the SPLC's "hate group" labels are published. DJKM is not just suing the SPLC — this Christian ministry is also suing Amazon, because Amazon excluded DJKM from its fundraising program, Amazon Smile. Amazon admitted that it used the SPLC's "hate group" list to exclude DJKM.
In his case, Nawaz noted that Floyd Corkins II terrorized the Family Research Council in 2012, entering the building with the intent to kill everyone there, and using the SPLC's "hate map" to target FRC. Nawaz also mentioned the SPLC's troubling connection to the shooting of House Majority Whip Steve Scalise last summer. The shooter in that case, James Hodgkinson, "liked" the SPLC on Facebook, and the SPLC had attacked Scalise numerous times.
Furthermore, CNN shared the SPLC "hate map" uncritically last summer, and "hate group" designations have popped up on ABC News and NBC News, and in congressional testimony for Trump administration confirmation hearings.
2. Objectively false.
According to the FBI, a hate group's "primary purpose is to promote animosity, hostility, and malice against persons belonging to a race, religion, disability, sexual orientation, or ethnicity/national origin which differs from that of the members of the organization."
In public testimony, SPLC President Richard Cohen admitted that his organization's "hate group" labels are based on "opinion." Former SPLC spokesman Mark Potok explained that their criteria for a "hate group" "have nothing to do with criminality, or violence, or any kind of guess we're making about 'this group could be dangerous.' It's strictly ideological."
"So we look at a group and we say, 'Does this group, in its platform statements, or the speeches of its leader or leaders — does this group say that a whole group of people, by virtue of their group characteristics, is somehow less?" Potok explained.
Even by these criteria, many organizations on the "hate group" list do not belong.
In Nawaz's case, the left-wing smear group changed its reasons for listing Maajid Nawaz as an "anti-Muslim extremist," even using the argument that since he had gone to a strip club for his bachelor party, he must be "anti-Muslim."
Last year, when Dr. Frank Wright, president and CEO at DJKM, announced his lawsuit, he claimed that the SPLC engaged in explicitly anti-Christian bias.
"Those who knowingly label Christian ministries as 'hate' groups, solely for subscribing to the historic Christian faith, are either woefully uninformed or willfully deceitful. In the case of the Southern Poverty Law Center, our lawsuit alleges the latter," Wright declared.
Traditional Christian doctrine teaches that homosexual sexual activity is sinful and that transgenderism is false. Contrary to the SPLC, however, these doctrines do not imply that LGBT people are "somehow less." Neither do Christian organizations primarily "promote animosity, hostility, and malice" toward these people.
As Liberty Counsel's Mat Staver told PJ Media Tuesday, the mainstream groups involved "don't agree with the SPLC on certain issues, but they oppose violence. They have no reason to hate anyone."
In October 2013, Secretary of the Army John McHugh disassociated his service from the use of the SPLC's materials, noting that the material was "inaccurate, objectionable and otherwise inconsistent with current Army policy."
As Nawaz noted, the 2012 terrorist attack against the FRC proved that SPLC "hate group" labeling can directly inspire terrorism. DJKM's exclusion from Amazon Smile only further underscored this argument. The credit card processing service Vanco Payments withdrew its service from the Ruth Institute, and YouTube's bias against Prager University may trace back to Google's use of the SPLC list.
The "hate group" listing has caused serious reputational harm to many organizations. Last year, ABC News and NBC News parroted the SPLC's "hate group" label against Alliance Defending Freedom (ADF), an organization that has won 8 Supreme Court cases in 7 years. Last September, Sen. Al Franken (D-Minn.) used the SPLC label to compare ADF to Cambodian dictator Pol Pot.
Jeremy Tedesco, ADF's senior counsel, told PJ Media, "SPLC's partisan tactics and slander have ruinous, real-world consequences for which they should not be excused; we are evaluating all our options to defend the good name of ADF, including possible legal action."
This aspect of a defamation lawsuit may be the hardest to prove. The SPLC's materials have been used by law enforcement, the Army, and the FBI, so the left-wing organization might make a defense on public interest grounds.
However, this defense might backfire. DJKM spokesman John Rabe argued that the SPLC is effectively a "quasi-government agency," since "government has relied on them as if they were an impartial, neutral clearing house of information on hate groups, when in reality they're the furthest thing from that."
Since the SPLC has a privileged position similar to a government official or a celebrity, it should be held to a higher standard, and therefore be easier to sue for defamation.
5. "Actual malice."
Even if the SPLC has a privileged position, DJKM can argue a solid case for "actual malice."
In 2007, SPLC spokesman Mark Potok declared, "I want to say plainly that our aim in life is to destroy these groups, completely destroy them." The next year, he added, "You are able to destroy these groups sometimes by the things you publish. It's not so much that they will bring down the police or the federal agents on their head, it's that you can sometimes so mortally embarrass these groups that they will be destroyed."
The left-wing smear group had already listed DJKM — then known as "Coral Ridge Presbyterian" or "Coral Ridge Ministries" — among "hate groups" as early as 2005 (although the 2005 list did not explicitly call Coral Ridge a "hate group").
When Potok said the SPLC's "aim in life is to destroy these groups," he was talking about DJKM — or, at least, FRC, which would be attacked by terrorists five years later.
The SPLC's actions also demonstrate a recklessness with the truth. Last year, the group removed the innocent historic town of Amana Colonies from its "hate map." While the SPLC eventually removed Amana Colonies, it first defended the "hate" label because a white supremacist website claimed to have had a book club in one of the town's restaurants.
These inconvenient facts should prove the final nail in the coffin for any defense the SPLC could make against a defamation charge. The "destroy these groups" comment seems no less than incontrovertible proof of the highest standard in defamation law.
On Wednesday, 47 nonprofit leaders — including representatives of DJKM, FRC, ADF, and the Ruth Institute — warned "editors, CEOs, shareholders and consumers alike are on notice: anyone relying upon and repeating its misrepresentations is complicit in the SPLC's harmful defamation of large numbers of American citizens."
This warning, coming as it did in the context of "about 60 groups" considering legal action against the SPLC, should terrify the news outlets and companies that championed the "hate group" list, from CNN, ABC, and NBC to Google, Amazon, and Apple. The case against the SPLC is solid, and organizations should take care not to associate with the "hate group" defamations.
The case of Maajid Nawaz may be worse for the SPLC than others, but DJKM's defamation lawsuit seems particularly strong, and the fact that the SPLC settled with Nawaz should send a powerful signal to others.
"There's never any predicting what a particular judge is going to say or do," DJKM's John Rabe told PJ Media. "But it would be hard not to be encouraged by this enormous settlement handed out by the SPLC which exposes exactly what it is that we've been accusing them of."