Fear and Loathing in De Anza College, pt. 1

I’m about to go off and argue against a libel case made against a friend. He’s running for student president at my community college, but ran into some political roadblocks – some staff members on the current student administration have set up a case based around his statement that he thought that one senatorial candidate was more qualified than the other. 

The case is bullshit. It’s nothing more than a game – a fucking game – of amateur bureaucratic politics. His accuser has ties to the other student group organized for this election, and the case, as structured, clearly doesn’t count as libel. Hell, it doesn’t count as anything. Though it’s a pity I won’t be able to cover it as an orthodox journalist, defending Marlo as a gonzo blogger sounds like a nice deal. A bit of research magic, courtesy of the Electronic Frontier Foundation, a dash of quick writing, a sprinkling of speaking practice, and I’m ready to prove that the whole adage about bringing knives to a gunfight holds especially true in the realm of politics.

If you’re going to accuse anybody of libel, be fucking sure they won’t be able to turn it against you.

Below is the text of the speech I’m planning to present. I’ll give a followup post on how the events proceeded.

The Case Against Marlo Custodio’s Libel Case

On the issue of libel, the Electronic Frontier Foundation, amongst the most prestigious leading experts of American free speech laws, lists out the most basic and foundational structures of a defamation – libel or slander – case:

  1. A publication to one other than the person defamed;
  2. A false statement of fact;
  3. That is understood as
    1. Being of and concerning the plaintiff; and
    2. Tending to harm the reputation of the plaintiff.
    3. If the plaintiff is a public figure, he or she must also prove actual malice.

The case against the defendant candidate fails two of these stress tests, the first being the most important: the factuality of the statement made.

Also by the EFF, “Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement.

In context of the conversation that got Custodio in trouble in the first place, it is clear that the statement made had no qualifications based upon factual sources – it was, in fact, a clear statement of opinion and support for one candidate, with no criterion set, whether positive or negative, for the other. I would argue and assert that there has been no brightline in which the case against Custodio can rest upon in defining his simple statement as anything factual.

Disqualifying a candidate because of a given opinion isn’t only silly – disqualifying anybody because of a statement opinion would oust not just half, two thirds or seven eighths, but the entire student government from eligibility for their positions. In fact, disqualifying a candidate for exercising his free speech rights is outright discriminatory. We don’t punish students for discussing the relative merits of student candidates, should they so choose (again I stress the primacy of the first amendment here), and we certainly don’t look unfavorably upon national politicians for swinging their weight behind a preferred candidate – rather, we fully expect them to, and wonder about candidates that don’t get endorsements.

Saying that one candidate is more qualified than another candidate does not besmirch the reputation of either candidate. It is solely a positive indicator for the candidate endorsed – calling one guy a saint does not automatically make another a devil. In fact, because of this, the case against Custodio fails the second stress test: the proving of malice.

As both the plaintiff and defendant are public figures, the burden of proof falls upon the plaintiff to prove that there was definitive malice in the statement made by Marlo Custodio. This is going to be difficult, as nothing at all in his statement or conversation made indicated anything relating to incompetence or uncharitable behavior from either party involved in the conversation. Again, chrome-plating one side’s reputation is not the same thing as smearing mud against another’s reputation. If his accusers cannot set a clear brightline in which to prove, beyond a shadow of a doubt, malicious intent by Marlo Custodio, then I am forced to remind them that, around here, you’re innocent until you’re proven guilty.

I would go a step farther and assert that the converse is far more true – that, instead, Custodio has a case of libel against his accusers. Libel, especially in context of a representative election, is a serious charge, and a test of Custodio’s character and reputation – it isn’t a matter of politics and it certainly isn’t some kind of bureaucratic game. Let’s go over the five points of a defamation case:


  1. A publication to one other than the person defamed: this trial stands as public record as a case against Custodio’s reputation.
  2. A false statement of fact: factuality has a clear and definite legal and common definition, and one that takes no trouble at all to look up and confirm. It is factual that Marlo’s statement does not fall under the category and jurisdiction of defamation.
  3. A. Being of and concerning the plaintiff: the case deals with Marlo Custodio, no argument.

B. Tending to harm the reputation of the plaintiff: Accusing Custodio of defamation is a formal attack upon his character and reputation, and will almost certainly influence the vote.

4. If the plaintiff is a public figure, he must also prove malice: though usually a difficult case for the plaintiff, it is clear that a successful case against Custodio would severely impact his effective eligibility as a student candidate. This is, clearly, an act of malice – perhaps not personal, but definitely in effect.

Let me remind you again: this is not a goddamn game. This may be student politics, but it is still politics, and the people involved in the race will end up representing the thousands of students of De Anza College come next Fall. I have aptly demonstrated that the case against Custodio is badly researched, badly organized, and – worse – badly wasteful, detracting attention away from the issues supported by the candidates and made it a shallow and vague issue of character.

Punishing Custodio for the supposed sin of having a legitimate perspective is outside of the De Anza Student Body’s jurisdiction. Reprimanding his accusers for wasting time and resources in a badly organized and articulated defamation case, without even going as far as looking up what defamation actually is, does, in fact, fall under the DASB’s purview.

I am sure you will make the wise and, importantly, justified choice.


~ by Gonzo Mehum on May 14, 2009.

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