John Doe vs. John Doe: Virginia Court's Decision in Online 'John Doe' Case Hailed by Free-Speech Advocates

[Jim Choate]

On Tue, 20 Mar 2001, Sandy Sandfort wrote:

> Under the common law, defamation is a tort, not a crime.  Though some
> jurisdictions may have a parallel criminal statute against defamation, when
> one party sues another, it's civil, not criminal.
> 
> A good analogy would be "battery."  Under the common law, the cause of
> action called battery was defined as an unwanted touching.  Case law has
> filled out that definition with examples, exceptions, etc.
> 
> Most US jurisdiction also have a crime called battery.  So if you hit me,
> the cops can arrest you and prosecute you for the crime of battery.
> Independently, I may sue you for the common law tort of battery.

But there's a primary difference you skim right over....damages.

What is the reason the civil statute exists? Because some 'damage' has
occured. An 'infringement' if you want. The criminal case results from the
'breach of the peace'. The civil case is so the 'defendent' (in this case
the person hit) may recover the cost of living with the consequences of
anothers action upon them (something that is clearly outside the scope of 
the 'criminal' law).

One question would be "Is it constitutional to apply a civil law which is
meant to work in parallel with a criminal statute by itself?"

Clearly in a country with the 1st you can't sue somebody, civil or
criminal, simply for what they say. You must prove that it is untrue and
has caused damages, irrespective of civil or criminal. The only question
is the standard. As somebody said recently, it's really fraud.

Now how can one, simply by changing the name (fraud -> defemation), move a
criminal offence into a civil tort under the 1st?

Is the standard constitutional? How can the civil crime of 'defemation'
even be brought in a civil court under the 1st? There is clearly no
parallel standard such as 'shouting fire in a theatre' with respect to a
threat to the population in general. The courts have held that the law is
not there specifically to protect the individual, but rather 'society'.

Ultimately the real question is:

Is it constitutional to differentiate the rights with respect to speech
between civil and criminal cases?

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         If the law is based on precedence, why is the Constitution
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