Needed: The Free Speech Billionaire

01Sep11

Nothing does more to keep America mired in corruption and dismay than the fact that we cannot speak freely about things that need to be brought into the light and talked about.  This is true across many fronts, but a particularly noticeable one has to do with the risk of being sued in a civil action for defamation (i.e., libel or slander).

Of course, nobody wants to be falsely accused, smeared without reason, and left without any way to clear their name.  Sadly, though, the same jurisprudential gridlock that deters people from speaking frankly — for fear of being subjected to a lawsuit backed by little truth but much wealth — also prevents them from using the courts to defend themselves.  Whether as plaintiff or defendant, litigation in the name of truth-telling is prohibitively expensive (not to mention interminably stressful) for the vast majority of Americans.  And as things stand now, there is little prospect that courts or legislatures will be significantly reforming this situation in the foreseeable future.

One solution to this situation could emerge if someone with substantial funds, ability, and determination were to devote him/herself to this issue.  Bill and Melinda Gates have demonstrated how a fortune can be leveraged to stimulate progress in areas such as education and health.  Someone with a commitment to the truth — not Truth in a grand philosophical sense, but simple everyday truthfulness — could provide an enormous positive impetus on behalf of those millions of people who strive, in various ways, to set their part of the collective national record straight.  One goal could be to encourage people to bring out their issues early, before they have ballooned into something unmanageable and destructive.

Such a proposal would obviously require some careful thought and planning.  What I present here is only a sketch for discussion purposes.

Suppose I have seen or otherwise encountered some kind of bad behavior.  I want to speak up about it.  In fact, I am so determined to set out the truth on this matter that I would risk losing my job and otherwise going through hell to say my piece and make it stick.  Unfortunately, in the present arrangement, even this sort of extreme determination may be insufficient for the task.  I may not have the money to win, if I’m speaking against a wealthy party who then sues me for defamation.  In that case, after sacrificing everything, I may have achieved nothing.  It’s not surprising that people instead choose to become implicit accomplices to dysfunctionality, and often even convince themselves that they are right to do so.

What is needed, in such a scenario, is not simply a rich uncle who will completely bankroll my freedom to say whatever I wish.  That could make me as much of a wrongdoer as the people I am speaking out against.  Power tends to corrupt; and even if it didn’t, everyone is going to be wrong sometimes.  It would be better if there were some relatively accessible intermediary who would consider backing me up, as a rich uncle would, but only if I can put up a decent defense of my viewpoint.

Such an intermediary, seeking an accurate statement of what actually happened in the case at issue, would presumably not just take my word for it, even if my word seemed to be supported by documentation.  The better approach would seem to be something like this:  Party A tells the intermediary that Party B did something bad.  The intermediary reviews the documentation and other support provided by Party A.  Assuming it looks like a legitimate issue, the intermediary contacts Party B to see if he/she/it is interested in presenting a reply.

The task of sorting out the facts in an individual case could be handled relatively inexpensively.  Two telecommuting college graduates employed by the intermediary agency, not acquainted with one another, could receive the documentation from Party A, along with any other potentially relevant information about the parties that they might be authorized to gather (e.g., credit check, Google search).  They might start with an assignment to write up what seems to have happened, along with any questions or inconsistencies they have encountered.  The presence or absence of substantial agreement between the two reviewers could guide their supervisor’s decision to contact Party B, to call upon a third preliminary reviewer, or to take other steps.

In this scenario, the commitment of the intermediary would be to the truth of the matter, not to either party.  An investigation could go either way.  If Party B presents a reply, the intermediary’s continuing review might lead to the impression that, actually, Party B was in the right.  In that event, the intermediary might go back to Party A with the new information, to see if he/she/it has anything to add.  This process could continue for some time, as additional questions and insights emerge.

Eventually, though — and quite soon, in many cases — the picture would be pretty well sketched out.  There would be various ways to proceed from that point.  One possibility would be for the intermediary to write up the facts and conclusions that came from its investigation, and then leave the parties to do whatever they wished with that writeup.

There would be other possibilities.  The intermediary might charge fees on a sliding scale and/or require a commitment, from all parties, to reimburse it for its expenses in digging out the truth, and might pursue such reimbursement especially aggressively if one party has deliberately obstructed or resisted the pursuit of the facts.  Where a party refuses to provide such reimbursement, with or without a prior commitment to do so, the intermediary might initiate or back a lawsuit against the party that appears to be in the wrong.  The intermediary may be positioned to function as a witness at trial.  There may be ways in which the intermediary could lobby for changes to laws, so as to increase its potential reimbursement and otherwise facilitate its truthseeking efforts.

Just as one must follow certain rules in health insurance (e.g., make your copayment, get precertification before expensive procedures), dispute resolution insurance may require parties to follow empirically supported approaches to conflict situations (e.g., begin by expressing your grievance directly to the party in question, rather than spreading the story to everyone else or just letting the matter fester in silence).  Documentation of such approaches may be expected in Party A’s preliminary complaint, and recommended if missing.  At some point, it may be possible for people to sign up for something in the nature of free speech dispute resolution insurance, giving them some assurance of a real right to speak freely, provided they have followed certain recommended procedures.

Regardless of whether the intermediary remains the sole or dominant agency providing such services, or transitions into a competitive market environment, one goal might be to develop a partner of the legal system.  The court would become a confirmer of free specch disputes resolved elsewhere, the enforcer of the intermediary’s claims for reimbursement, and a backstop for intractable cases that have not responded well to ordinary measures.  Meanwhile, the court would be freed from the obligation to deal directly with endless numbers of individual cases, long waiting upon an opportunity for justice, that could be more effectively handled elsewhere.

Such an arrangement could facilitate progress toward the ideal of a justice system whose governmental and nongovernmental participants, acting in concert, could at last provide prompt and effective attention to grievances, thereby opening doors for the public to identify and improve many situations in need of improvement across society.

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One Response to “Needed: The Free Speech Billionaire”

  1. But what prevents this system from becoming as corrupt as the justice system, which is intended to serve the same function? Sadly, Diogenes’ search is probably a futile one.


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