The Southern Poverty Law Center has surrendered, completely and unconditionally, in the face of a threatened defamation lawsuit by British activist and politician Maajid Nawaz. That surrender includes a $3.375 million payment to Nawaz "to fund work fighting anti-Muslim bigotry and extremism" and prominent written and video apologies.

This is a rout by Nawaz, a crushing victory on a scale I don't remember seeing in a threatened defamation suit. Though it inspires good feelings about fairness and truth, it ought also inspire concern about free expression and our broken court system.

The case begins with the SPLC's October 2016 "Field Guide To Anti-Muslim Extremists," which listed Nawaz. Nawaz is Muslim and spends a considerable amount of his time calling out anti-Muslim bigotry. The SPLC put him on the list for, among other things, printing a cartoon of Mohammed, advocating a ban on wearing a veil in some public places, and — most significantly — providing British law enforcement with a list of Islamic organizations and saying that "the ideology of non-violent Islamists is broadly the same as that of violent Islamists; they disagree only on tactics." The SPLC's stance was met with rather broad criticism. They sent the "Field Guide" down the memory hole.

Nawaz did not take this characterization lightly. He attacked it repeatedly and publicly, threatened a defamation suit, and eventually crowdfunded a legal team to pursue that lawsuit. This settlement, reached in advance of any suit being filed, is the result.

The SPLC's agreed-upon apology is both complete and oddly vague:

The Southern Poverty Law Center was wrong to include Maajid Nawaz and the Quilliam Foundation in our Field Guide to Anti-Muslim Extremists. Since we published the Field Guide, we have taken the time to do more research and have consulted with human rights advocates we respect. We’ve found that Mr. Nawaz and Quilliam have made valuable and important contributions to public discourse, including by promoting pluralism and condemning both anti-Muslim bigotry and Islamist extremism. Although we may have our differences with some of the positions that Mr. Nawaz and Quilliam have taken, they are most certainly not anti-Muslim extremists. We would like to extend our sincerest apologies to Mr. Nawaz, Quilliam, and our readers for the error, and we wish Mr. Nawaz and Quilliam all the best.

The SPLC has fallen from being a justifiably respected warrior against bigotry and brutality to an unreliable, sophomoric, flailing orthodoxy-cop that struggles to distinguish organized hate groups like the Klan from trolls, idiots, or social conservatives. I would like to see them be more responsible. But I am worried — and you should be too — about the abuse of defamation law.

One of the most basic principles of defamation law, mandated by the First Amendment, is that pure opinion can't be defamatory. Only statements of provable fact — or statements that imply provable fact — can be defamatory. I write about this constantly. An opinion, however moronic or unfair, is absolutely protected by the First Amendment unless it implies that the speaker is relying on undisclosed provable facts. So, for instance, "look at what this guy wrote, he's a bigot" is by definition not defamatory; it's based on an interpretation of a disclosed fact, the thing the guy wrote. "I've listened to this guy's conversations and, let me tell you, he's a bigot" might be defamatory, because it implies undisclosed facts — whatever you claim you heard.

Here, the SPLC's fatuous Field Guide appeared to be classic opinion based on disclosed facts. The SPLC offered its opinion that certain people were "anti-Muslim extremists" based on facts it set forth and linked. Their conclusion appears unfair, narrow-minded, and uttered in bad faith, but opinions are absolutely protected whether or not they're unfair, narrow-minded, and in bad faith. It's possible that I have missed a textual analysis, but it appears to me that Nawaz' criticism of the piece was that it unfairly characterized him based on facts, not that it got specific provable facts wrong.

That impression is fortified by the negotiated apology. The SPLC's apology — the precise language of which is dictated by the settlement agreement — says that the SPLC was wrong to put Nawaz on the Field Guide list and that Nawaz has done valuable work against bigotry. That's all true, rationally and morally. But what it very conspicuously doesn't say is exactly what facts the SPLC got wrong. It sounds like an apology for drawing an irrational, unfair conclusion, which is simply not defamation. Moreover, Nawaz specifically said he was going to sue to fight people who use labels like "racist" and "Nazi." But such labels are classic opinion.

It's impossible to overstate the extent of the SPLC's surrender here — I can't remember one combining this level of money and apology, especially pre-litigation. So why did they do it? Maybe there are specific false statements of fact in the Field Guide that haven't come to light. Perhaps discovery would have revealed ugly things about the SPLC's process of writing such lists. Perhaps the lawsuit would have resulted in sustained terrible publicity for the SPLC, undermining whatever credibility it has left. Maybe they're actually contrite.

But though I celebrate an apology for wrongdoing, I can't celebrate a surrender at swordpoint that encourages censorious litigation. Bad opinions are, and ought to be — must be — absolutely protected. If the SPLC surrendered because we've got a broken judicial system that makes litigation ruinously expensive and fails to protect free speech, the result is bad, not good. The threatened lawsuit appears to be part of a trend of suing the SPLC for its opinions and characterizations. The settlement will embolden that trend. The trend will not stay confined to the SPLC — that's not the way the law works. Especially in such bitterly divided times, suing over opinions is deeply censorious and corrosive of free speech. Nawaz — who has himself been the target of attempted censorship — should know that.

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