Damian:
I hesitate to take on a lawyer on this, but my reading of the commentary (not the RFJ) is that Mair did not base his comment on a provable fact. That is one of the basics of a fair-comment defence.
If you look at the quote from Mair's program, you get the same impression as Madam Justice Southin -- that Mair hedges around the accusation of inciting violence ("Now I’m not suggesting that Kari was proposing or supporting any kind of holocaust or violence") and then goes ahead and makes it anyway ("when you think about it and look back — neither did Hitler or Governor Wallace...Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Klu Klux Klan").
So did Mair believe his own accusation or not? If he didn't, that's not merely disproof of fair comment but proof of malice. If he did, then he needs a factual basis for it, which he explicitly denies earlier in the broadcast.
Everytime I hear or read something by Mair I find the same kinds of sloppy reasoning. He's been an idiot, on this and other matters, and deserved what he got in the judgement. And THAT's fair comment.
Chillin' about the chill.
I'm with Volokh on this. It's clear the court's decision was based in part on the offensive content of the speech. If the First Amendment does not protect offensive speech, then "no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble" is rendered a nullity.
Posted at 2007-11-22 13:15:09 [PermaLink]